State v. Price , 21 Md. 448 ( 1864 )

Cochran, J.,

delivered the opinion of this Court:

This case was brought up by writ of error from the Circuit Court for Harford County, tho defendant in error, having been indicted for obstructing a highway. The indictment contains two counis, one of which describes the obstructed road as a “common highway, leading from “Sarah. Standiford’s gate toward the Baltimore and Philadelphia turnpike, to the house known as Berry’s house;”, and the other as a “common highway leading from Sarah Standiford’s gate toward the Baltimore and Philadelphia turnpike.” The defendant in error, for special matter of defence, pleaded, that on a petition of certain citizens for a continuous road from the Bel Air and Abingdon road to tho Baltimore and Havre de Grace turnpike, the county commissioners ordered the road, laid out in conformity with the petition, to be opened from Standiford’s gate to the turnpike; but that said road never was opened except from Standiford’s gate to Berry’s bouse, andtbatno supervisor was ever appointed thereon; that the portion of the road so opened commences on private property, where there is no connecting public thoroughfare, mill, market, church or limekiln, and, passing through private property, ends at the distance of one hundred and forty-four perches from the turnpike, without any where connecting with any public road; and that, by reason of these premises, the obstructed road is not a public highway. The replication to this plea states, substantially, that the road in question, was opened from Standiford’s -gate to the turnpike, on a distinct petition therefor; that it had been used, with the assent of the defendant, as a public road for twenty years; that there were limekilns in the vicinity of Standiford’s gate; and that the public had means of access, both from the Abingdon road and the turnpike, to the road between* Standiford’s gate and Berry’s house. To this replication the defendant filed a demurrer, which was sustained and judgment entered accordingly.

The effect of the demurrer was to bring all the pleadings into review, and it was the duty of the Court below, as it is ours here, to pronounce against the party guilty of the first error. We think it proper however, before disposing of the case on the pleadings, to state briefly our views on the question as to the character of the road, to which the pleadings refer.' Assuming that it was opened from Standiford’s gate to the turnpike, as alleged in the replication, we are of opinion that it should be taken and considered as a public road, and that the willful obstruction of it would constitute an indictable offence. The county commissioners had authority, under the Act of 1822, ch. 18, to open, on petition, any new road which in their opinion would conduce to the advantage and convenience of the public; and, we think, whether a supervisor is appointed or not, that a road, opened from a common thoroughfare, in virtue of that authority, is a public road in contemplation of the Act, even if it does not connect with another highway, nor lead to a mill, market or church. A less liberal construction of the Act, would tend, in some measure, to defeat the purpose contemplated by it. It is true, however, that a road, to which the public can have no access by a public highway, cannot in the nature of things be public, and at 'most would serve only the purposes of private convenience.

The offence charged in. the first count of this indictment is the obstruction of.a road, leading from Standiford’s gate to Berry’s house; and in the second, the obstruction of a road, leading from Standiford’s gate toward the turnpike. The plea, after stating by way of inducement, that the road commenced and ended on private property, without connecting with any public thoroughfare, denies that it is a public road. The replication answers that the road was opened from Standiford’s gate to the turnpike, and that is a public road. We think this averment of the replication is a clear departure from the indictment. The statement, that the road was opened from the gate to the turnpike, varies the case, the defendant was called to answer, in a most important particular. The indictment describes the road not as leading to, but only toward the turnpike. The defect thus appearing in the replication, while sufficient to sustain the demurrer,, leads us to consider the relative question as to the sufficiency of the indictment. The general rule is, “that where the Act is not in itself necessarily unlawful, but becomes so by its peculiar circumstances and relations, all the matters must be sot forth in which its illegality consists.” 1 Chitty’s Crim. Law, 228. The willful obstruction of a road or way, constitutes an indictable offence only when the road or way is public, and the obstruction tends to the inconvenience of the common right to use it. Here, the indictment charges, as an offence, the obstruction of a road which, as described, does not appear to have been, a public road. The connection of the road with some other common thoroughfare, by means of which the public could have access to it, was a necessary element of the offence charged, and it should have been shown with certainty, so that the Court could have seen that the indictment was bad upon a sufficient case. And especially was this necessary to inform the defendant of what he had to answer, as well as to enable him to plead the acquittal or conviction to any subsequent indictment. The- indictment sliould liave shown that the road, obstructed, connected with, and was accessible from a public highway. As that was not done we must affirm the judgment.

(Decided June 1st, 1864.)

Judgment affirmed.