KELLEY v. THE STATE

1. — Obstructing Public Road — Plea of Former Acquittal.

Where the court in its charge safeguarded the conviction of appellant of any offense of which he might have been convicted under the former information, there was no reversible error in striking out the plea of former acquittal, as the defendant's rights were not prejudiced thereby.

A judgment of a jury of review, which does not contain a recitation of notice, can not be attacked collaterally by a defendant who is charged with obstructing the public road which such judgment establishes.

Where a defendant, charged with obstructing a public road was one of the original petitioners to lay out the road and was appointed one of the jury of review, although he did not act as such juror; and was also one of the petitioners asking for the change of said road after it was laid out, he is estopped from setting up want of legal notice to open up and lay out the road as a defense, aside from the rule of law that he is precluded by the judgment of the jury of review from doing it.

Defendant, who was charged with obstructing a public road willfully, could not plead good faith, because he was not legally notified of the petition asking that the road be established, when he had actual notice of the various proceedings of the commissioners court with reference thereto and himself petitioned to have the road changed, and could not introduce testimony as to his and the belief of others as to the locus in quo of the road.

Nor does the fact that, after the establishment of a public road, which defendant is charged to have obstructed, he may have placed his fence within the bounds of said road, and that the commissioners court had not authorized the removal of such obstruction, relieve him of liability for subsequently closing up said road by fencing it on the south and north ends of the sections of land it divided.

Appellant, who was charged with willfully obstructing a public road, could not be permitted to introduce as evidence of good faith, and to contradict the charge of willfulness, the injunction proceedings with reference to said road begun subsequently to the time he obstructed said road.

Where the court in its general charge required the jury, in order to convict, to believe from the evidence that defendant's act of obstruction was willful, there was no error in refusing defendant's requested instructions as to willfulness, or his good faith.

It was not necessary to charge that before the public road which the defendant is alleged to have obstructed became a public road, all obstructions must be removed from it; even if it be conceded that part of said road was under fence, still that part which was open to the public for travel could not be obstructed.

When a road has been actually reviewed and laid out on the ground by a jury of view, appointed by and acting under authority from the commissioners court and their written report describing said road has been approved by said court, then the said road is a public one.

Appellant could not assert as a defense that the road which he was charged to have obstructed had not been opened up by a road overseer prior to the time he was alleged to have obstructed it, when he had placed obstructions thereon after the road had been laid out, first partially obstructing and then completely obstructing the road.

Affidavits filed regarding the statement of facts approved by the trial judge can not be considered.

HENDERSON, JUDGE.

Appellant was convicted of obstructing or causing obstructions to be placed on a certain public road, and his punishment assessed at a fine of one cent, and prosecutes this appeal.

Appellant's first bill of exceptions calls in question the action of the court striking out his plea of former acquittal. His plea properly sets out the proceedings, showing an acquittal of defendant for the alleged offense of obstructing the same public road on the 14th day of January, 1902. The affidavit was filed on January 22, 1902, and the information was filed shortly thereafter. It further shows a judgment of acquittal on account of said alleged offense. The information in this case was filed on June 6, 1902, and charged an offense of obstructing the said road on March 3, 1902. While it is true that, as to the last charge on which this trial was had, the State was not bound to an offense charged on March 3d, the date alleged, but could have gone back of that so as to have covered the time alleged in the former information, yet it is true that in the first information the State could not have gone beyond the time of making the affidavit, which, as stated, was January 22, 1902. While perhaps the court was not originally justified in striking out the plea of former acquittal, but when we look to the proof in this case, which is uncontroverted on the question, the offense here proven occurred on March 3, 1902, and the court by its charge safeguarded the conviction of appellant of any offense of which he might have been convicted under the former information. So we fail to see how appellant's rights were prejudiced by the action of the court striking out said plea.

Appellant questions the action of the court, because he says that the notice of the jury of review served on him requiring him to attend at the laying out of the road and to make his claim for damages was served by mail, and only came to his hands three days before the sitting of said jury of review. He insists that if this character of service by mail was sufficient, he should have had five days notice under article 4691, Revised Civil Statutes. Appellant's contention would be true, if he was not otherwise bound by the judgment. The jury of review was a court of competent jurisdiction with reference to laying out the road, and as to allowing damages therefor. The judgment here establishing the road predicated on the report of the jury of review does not contain any recitation of notice. Appellant himself projected this matter, and it seems testified, without objection, that the notice by mail only came to his hands three days before the adjudication establishing the road. In accordance with the rule laid down in Fitsch v. Boyer, 51 Tex. 336, it is held that a domestic judgment of a court of competent jurisdiction upon a subject matter within the ordinary scope of its power and proceedings is entitled to such absolute verity that in a collateral action, even where the record is silent as to notice, the presumption, when not contradicted by the record itself, that the court had jurisdiction of the person also, is so conclusive that evidence aliunde will not be admitted to contradict it. Moreover, here appellant was one of the original petitioners for the road, and was also appointed one of the jury of review, although he did not act. True, his particular section of land was not called for in his petition, but he applied for the road between the particular points named in the order, which ran through his community and from his neighborhood to the town of Lockney; and he contends he understood it was to run on the west side of his land and not on the east as ultimately adopted; that he did not care as to it running around his west boundary line of section 56, as it would not injure him. However, he must have known of the action of the commissioners court in laying out and adopting the road as reported by the jury of review, but he appears to have remained quiescent until November 11, 1901, when the record shows he got up a petition to the commissioners court, which he signed with seven others, to change the road from his east boundary line of section 56 to his west boundary line. This is a direct recognition of the road as established on the east side of his section 56; and it occurs to us is in the nature of an estoppel on him. In his evidence he says: "That he got up this petition to change said road before he fenced it, because he was afraid he would be prosecuted if he fenced it without first getting it changed; that he took said petition and went around to see the landowners, got eight signers, stuck up the proper notice, and presented said petition to the Commissioners Court of Floyd County, Texas, and they refused to grant said petition." We hold in the first place that he could not question the action of the commissioners court in establishing said road in a collateral proceeding by showing a want of notice. We hold, even if it be conceded that he could question the action of the commissioners court in establishing the road by showing aliunde the record that notice was not served on him, that with full knowledge of the establishment of said road in the locus in quo, he subsequently recognized and adopted such road by petitioning the commissioners court to change said public road. See Crouch v. State, 45 S.W. Rep., 578; Allen v. Parker, 57 S.W. Rep., 703.

If we are correct in holding as above, that appellant was bound by the action of the commissioners court in establishing said public road along his east boundary line, making a public road of the first class sixty feet wide along his line between sections 55 and 56, then it was not competent for him to introduce evidence as to what others may have advised him in regard to fencing up said road. His mere alleged belief in the face of the facts would not evidence his good faith or contravene the idea of his willfulness in stopping up said road. Crouch v. State, supra. He unquestionably knew, when he undertook to fence it up at both ends, that it had been laid out and established by the commissioners court as a public thoroughfare. Nor does the fact that after its establishment he may have placed his fence within the bounds of said road, and that the commissioners court had not authorized the removal of said obstruction, relieve him of liability for subsequently closing up said road by fencing it on the south and north ends of his said sections 56 and 55.

Nor, in our opinion, could appellant introduce as evidence of good faith, and to contradict the proposition of willfulness insisted on by the State, the injunction proceedings with reference to this road, sued out on March 10th, which was subsequent to his obstructing said road on the 3d of March. We do not believe it was necessary for the court to give appellant's special requested instructions as to "willfulness." The court in the main charge required the jury to believe that the act was willfully done before they could convict appellant.

Nor was it necessary for the court to charge on appellant's good faith in the matter. As was said in Crouch's case, supra, "We hold that the fact of his fastening up said gate, after he knew it had been established as a public road, etc., was under the circumstance willful," etc.

Appellant objected to the following portion of the charge of the court: "You are further instructed that, if you find from the evidence the road in question was reported by the jury of review to follow certain land lines, but that the road laid out on the ground by the jury of review did not in fact follow such land lines, then you are instructed that the true public road is the one actually laid out on the ground by the jury of review, and not the land lines or the route delineated or described in the report of the jury of view." We do not recall any evidence that authorized this particular instruction, and we fail to see how it could have injured appellant, inasmuch as there is no question but that he closed the road at a point in said public road designated by the jury of review and the commissioners court. Appellant himself says, "that the Lockney and Sand Hill road was viewed out and run along the dividing line between sections 55 and 56, and is thirty feet wide on each side of said line." He says that he put the gate at the north corner of section 56, which is about twenty-five feet east of the dividing line fence between sections 55 and 56, and is about nineteen feet east of the land line between said two sections.

We believe that the court under the facts and circumstances of the case correctly instructed the jury, "that a public road, within the meaning of the law, is one that has been actually reviewed and laid out on the ground by a jury of view, appointed by and acting under authority from the commissioners court, and that their written report describing said road has been approved by such commissioners court, and recorded in the minutes of such commissioners court." Nor does it occur to us that the subsequent charge of the court, after this definition of a public road, to the effect that if they believed appellant willfully obstructed and injured, etc., a public road, etc., to find him guilty, and that portion of said charge with reference to the date the jury must confine their investigation, to any date not earlier than 23d day of February, A.D. 1902, and not later than the 27th of June, 1902, is not subject to criticism on the ground that it deprived appellant of any right under his plea of former acquittal. As we understand the charge of the court it conserved his right in this particular. The charge could not be regarded as an interference with appellant's injunction proceedings, inasmuch as there is no pretense that the obstruction was placed there later than the 3d of March.

This portion of the charge is also objected to: "If you believe beyond a reasonable doubt that the road in question, leading from the Sand Hill schoolhouse to the town of Lockney, had been actually reviewed and laid out on the grund by a jury of view, appointed by and acting under authority from the Commissioners Court of Floyd County, Texas, and their written report describing said road had been approved by said commissioners court, you will find that said road was a public one." We believe this is a proper method authorized by law of establishing a public road. We do not believe it was necessary for the court to tell the jury that before it became a public road all obstructions must be removed from it. Even if it be conceded in this case that a part of said road was under fence, still that part of the road which was open to the public for travel could not be obstructed. But we do not believe the facts show that any part of the road where the obstruction was placed was under fence before the establishment of said public road. As we read the record it was placed there a good while after said road was established by the commissioners court. That is, appellant placed his line of fence along his section 56 at the point of the alleged obstruction, in the early part of January, 1902. It is not pretended that this obstructed the entire road, but the obstruction for which he was here convicted was for fencing up the balance of the road and completely preventing travel on March 3, 1902. We note in this connection that appellant complains that the court did not give a special requested instruction to the effect that before the jury would be warranted in convicting defendant for obstructing the Sand Hill and Lockney road, they must believe from the evidence that said road had been opened up on the ground by the road overseer, or some person under the direction of the commissioners court, prior to the time defendant obstructed said road, if he did obstruct the same," etc. As stated, when the road was laid out there was no necessity for ordering obstructions to be removed, inasmuch as appellant placed the obstructions there subsequently; that is, he built his line of fence partially along the public road, including some of it long after the road had been laid out. But it seems he left enough open way for the traveling public. However, in March he fenced up the balance, absolutely closing out travel. We think he was indictable both for placing his fence along the public road in January, and this may have been involved in the previous prosecution. He was certainly subject to prosecution for closing up the remaining portion of the road in March.

With reference to the affidavits filed regarding the statement of facts approved by the trial judge, it may be stated they can not be considered, as this is not the method provided by law for making up statement of facts.

Affirmed.

[Motion for rehearing overruled without written opinion. — Reporter.]