Howard v. State , 86 Tex. Crim. 288 ( 1919 )

Appellant was convicted of obstructing a public road.

The Assistant Attorney General moves to dismiss the appeal because the appeal bond nowhere shows that it was approved by the court, and being thus defective did not attach the jurisdiction of this court. On page 23 of the Acts of the Thirty-Sixth Legislature will be found Article 918, C.C.P. as amended. Prior to its amendment the convicted party in a misdemeanor was required to enter into a recognizance during the term of court at which the conviction was obtained. As amended it does not require the defendant to enter into a recognizance during the term, but after giving notice of appeal he shall be permitted to enter into bond after the expiration of the term of court in an amount to be fixed by the court. It further provides that before the defendant shall be released on such bail bond same must be approved by the sheriff or the judge trying the case, or his successor in office, and when such bail bond has been accepted and approved the defendant shall be released from custody the same as though he entered into a recognizance during the term at which he was convicted. This appeal bond was taken after the expiration of the term of court and approved only by the sheriff, so far as the record shows. We are of opinion it is sufficient where the sheriff approves the bond. We think so far as that phase of the motion is concerned it should be overruled.

The Assistant Attorney General also moves to strike out and not consider the statement of facts because filed more than twenty days after the adjournment of court. The court entered an order allowing sixty days after the adjournment of court in which to file the statement of facts. Such statement was in fact filed within the sixty days. Those cases cited by the Assistant Attorney General in support of this motion would sustain his contention, but in Gribble v. State, reported in 85 Tex. Crim. 52; those cases were overruled. The Gribble case was followed in the case of Wales v. State, also reported in85 Tex. Crim. 391. The proposition announced in the Gribble case is to the effect that under the stenographic act of the Legislature, discussed in that case, the rights of the accused in regard to statement of facts and bills of exception would be the same in misdemeanors as in felonies. The former decisions were based upon the idea that the statute only allowing twenty days in cases appealed from the County Court was not repealed by the later Act. This ruling seems to have been based upon the proposition that it was only in cases where there was a stenographer used that the statute authorizing twenty days would control. The Gribble case overrules those cases, and to the mind of the writer correctly so. The writer is of opinion, and is supported by the Gribble and Wales cases, supra, that the same rule would apply in regard to statement of facts and bills of exception in misdemeanors as in felony cases. Believing this view to be correct, the motion of the Assistant Attorney General to disregard the statement of facts will also be overruled.

Upon the merits of the case the facts show that appellant obstructed a public road by building a fence across it. This fence is described as being of a permanent nature and intended to obstruct the road. Under the evidence this road was laid out by a jury of view appointed by the Commissioner's Court of Montague County, and Mr. Willett had been appointed road overseer. He says: "I had the road opened and laid out according to instructions that I received at the time I was appointed overseer. I had the road worked by county hands and by other hands. The road was obstructed when I was overseer." Then follows his denial giving appellant his consent or permission to fense the road. The road extended through the lands of appellant to Red River. Another witness testified that he traveled along the road and saw the fence posts put up and wire nailed to the same and fastened up in a very substantial way, and saw appellant putting up this fence across the road. The sheriff testified he knew the road; that he tore the fence down; that appellant was present when he tore the fence down; that the fence was put up in a very substantial way; the posts were set in the ground and "stamped with rock." Appellant stated he would help witness take the fence down but he did not want to tear down his own fence. Appellant also stated to the sheriff that the fence was put up good; that the posts were well in the ground and stamped with rock, and that he put them up himself. The appellant introduced no testimony.

We are of opinion the evidence supports the verdict of the jury, There is what purports to be exceptions to the court's charge contained in the record, and included in the same document are special charges requested by appellant but refused by the court. Whether the court intended to approve these exceptions or not is left in very serious doubt. The exceptions and special charges are all included in the same document, which was endorsed "refused" by the court. The record, it occurs to us, fails to show that the court approved the exceptions, if we take his endorsement as the criterion. The main objection urged by appellant was to the definition the court gave of the word "wilful," which is in the following language: "By the term `wilful' is meant, that the the defendant knew at the time of the alleged obstruction that said road was a public road, and that said obstruction was placed there, if it was obstructed, with an evil intent." We are of opinion that this is a sufficient definition of the word "wilful." See Cornelison v. State, 40 Tex. Crim. 159. It seems the court here gave the identical charge that was held in the above cited case as being a sufficient definition of "wilful."

There being no error in the record authorizing a reversal, the judgment is ordered to be affirmed.

Affirmed.