Central of Ga. R'y Co. v. State , 145 Ala. 99 ( 1906 )

WEAKLEY, C. J.

By section 5388 of the Criminal Code (1896) three separate and distinct misdemeanors are declared in three different clauses in respect of obstructions of public roadi?, and these are: (1) To obstruct a public road by a fence, bar, or other impediment, except by gates across the same by leave of the court of county commissioners, obtained as provided by laAv; (21 to cut or placo a tree, brush, or other obstacle across a public road so: as to impede travel, and not removí' the same within six hours; (3) Avillfnlly to obstruid any public road in anyway. This statute has been preserved through all our compilations, ami has come to us without change from the Code of 1852, and even from Clay’s Digest. The indictment charges, that the appellant “did obstruct a certain public road, known .as “Pike Road,’ by a freight car, without, leave of the hoard of revenue first liad and obtained, -against the peace and dignity of the State of Alabama.” It does not charge a willful obstruction, and hence was not based upon the third clause above quoted, it does not aver a failure to remove ‘the car within six hours, and hence was not intended to find support in the second clause. It can, therefore, "only be referred to, and was no doubt designed to charge an offense, under the first clause. Indeed, the argument bore on behalf of the state proceeds upon the contention that the placing of the freight car upon the side track, and allowing it to remain there, as shown by the evidence, obstructed tire public road by an “impediment,” Avithin the meaning of the. first clause above set out.

Upon familiar rules of statutory construction, the three clauses must be construed together, and a field of operation, should be found for each; and in construing each, clause regard muff be had to its own language, and them to the other clauses, in the same section, adopting that meaning which makes the whole stand consistently together, if it may be done. — 26 Am. k Eng. Ency. Larv (2nd Ed.) p. 616 ; Lehman v. Robinson, 59 Ala. 219. Furthermore where a general term in a statute folloAvs specific‘Avords of a, like nature, it takes its meaning from the latter, and is presumed to embrace persons or things of the kind designated by the specific words. This is AAdiat is usually called the “ejusclem (/eneris rule” of statutory construction. — 26 Am. & Eng. Ency. Law (2d Ed.) p. 609 ; Johnson v. State, 32 Ala. 583 ; Prim. v. State, 36 Ala. 244. In Johnson v. State, 32 Ala. 583, it was intimated that an obstruction of a public road by cutting a ditch, so as to cause Avater to flow upon it Avas not Avithin the first clause, as we have stated it, the construction not being of like character Avitb a fence or bar, the specific Avords employed, and in Prim v. State, 36 Ala. 244, it aaois declared that the intimation, was a correct. construction, although it Avas also mid that the obstruction of a public road, caused by a mill dam, erected at some distance away, backing water into a. stream, so as to impede travel where the stream crosses the road would be an offense under the third clause if willfully done. In Gude v. State, 76 Ala. 100. the defendant was indicted under the third clause for willfully obstructing a public road by placing or causing to be placed a car or train of cats across the road; and it was said by Somerville, J., that, were it necessary to- decide the question, he would have no difficulty in arriving at tire conclusion, that “one could be convicted of violating this statute who willfully obstructs a public road by placing a. train of oars across it and allows such obstruction to remain there an unreasonable length of time.”

We find nothing in the foregoing decisions to conflict with the. conclusion that the word “impediment” in the first, clause should be construed as meaning an obstruction of a nontemporary nature, like a fence, bar, or gate erected across the road by leave of county commissioners or1 boards of revenue. On the contrary, the rale for construing the word according to- its companions!, recognized by our ease-i already cited, leads to and supports that conclusion. And this is fortified by comparison with the similar word “obstacle” in the secopd danse, which, on like principles, should be construed as referring to obstructions of a temporary character, which, if not willful, do not become criminal, unless they remain for as long as six hours. The third clause remains to cover all willful obstructions, and may include and secure the punishment of many that would not be embraced within the first arid second clauses above enumerated.

As the impediment alleged in the indictment was not a gate, and as a gate is the only obstruction or impediment for the erection of which the court of county commissioners may grant leave under section. 5388, it was not necessary to allege the want of such consent. The averment, however, may be treated as surplusage, and will not vitiate the indictment. The indictment is in Code form and is good. — Alexander v. State, 117 Ala. 220, 23 South. 48 ; Knuckols v. State, 136 Ala. 108, 34 South. 375.

We cannot say, upon the face of the indictment, that a freight car might not be employed in such a way as to constitute an “impediment” as already- limited and defined. In Thompson v. State, 20 Ala. 54, this court held, on demurrer to the. indictment, that “a large quantity of logs, sticks, brushwood, and dirt” might he an impediment within the meaning of the statute. The evidence in this case, however, showed that the. freight car was pushed by an employe of appellant on its track across the public road, and that it remained standing on its track from 30 o’clock in the morning until about 5 o’clock in the afternoon of the same day, when it was removed. It was not, therefore, an impediment of like character with fences, bars, and gates. The indictment did not charge that the obstacle was not removed within six hours, nor that it was willful.

Appellant was not guilty of the only offense the indictment can be treated as charging, and the city court erred in refusing a request in writing to so charge the jury. The judgment, therefore:, must be reversed, and, as appellant can never be convicted under this indictment on the facts proven, a judgment will be here rendered discharging it, without day. — Montgomery v. State, 88 Ala. 141, 7 South. 51.

Reversed and rendered.

Haralson, Dowdell, and Denson, JJ., concur. .