Citation Numbers: 32 S.E. 553, 124 N.C. 804
Judges: Clamc
Filed Date: 3/21/1899
Status: Precedential
Modified Date: 10/19/2024
Criminal action for obstructing a road, tried before Robinson, J., and a jury, at October Term, 1898, of SAMPSON, upon the following indictment:
"The jurors for the State, upon their oaths, present that J. H. Lucas, late of the county of Sampson, on 20 May, 1898, with force and arms, at and in said county, a certain road leading to and from Bethel Church in Little Coharie Township, Sampson County, known as the ``Old Church Road,' leading from the Wilmington and Raleigh road, known as the ``Negro Head Road,' to said church, did wilfully and unlawfully obstruct by putting his fence in the said road, against the form of the statute in such case made and provided, and against the peace and dignity of the State."
The following evidence was not controverted: That the road (805) (the obstruction of which was admitted by the defendant) has been continuously used as an ordinary neighborhood road for many years by the general public before the erection of Bethel Church, which was in 1856, and after the erection of the church many residents of the neighborhood continued to pass over that part of the road, which defendant has now obstructed, in going to and from said church, but the road was never a public charge. No hands were ever assigned to work it, nor had it ever been laid off or kept up by any court, county or township authority, nor was it ever laid off, dedicated, set apart or acquired in any way by any one as a public or church road, except by its use as above stated, and it was not kept open by any one in particular, but was kept open by such residents of the neighborhood as had occasion to use it and saw proper to do so.
The court charged the jury that if they believed the evidence the defendant was guilty, to which the defendant excepted. Verdict of guilty. Defendant moved in arrest of judgment for that the indictment does not charge a criminal offense. Motion denied. Judgment and appeal. The motion in arrest of judgment was properly overruled. The indictment follows the language of the statute (The Code, sec. 2065), which makes it a misdemeanor to "wilfully alter, change, or obstruct any highway, cartway, mill-road or *Page 514 road leading from or to any church or other place of public worship, whether the right of way thereto be secured in the manner herein provided for or by purchase, donation or otherwise."
As to the exception to the charge, the law is clearly and (806) succintly [succinctly] stated thus by Reade, J., in Boyden v. Achenback,
NEW TRIAL.
Cited: S. v. Truesdale,
(807)