State v. Gilbert
| Decision Date | 31 October 1880 |
| Citation | 73 Mo. 20 |
| Parties | THE STATE v. GILBERT, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Cass Circuit Court.--HON. F. P. WRIGHT, Judge.
AFFIRMED.
W. J. Terrell for appellant.
J. L. Smith, Attorney General, for the State.
Defendant was indicted for obstructing a public road, at the March term, 1877, of the Cass county circuit court, and having been tried and convicted, brings the same here by appeal. The cause was tried by the court without the intervention of a jury, and as no instructions were asked or given, we are restricted in our investigation to the action of the court in receiving evidence over the objection of defendant.
The State offered in evidence an order of the county court, of date February 15th, 1869, showing the filing of a report of the road commissioner, of the plat and survey of a new road, No. 46, and an order approving the report and establishing the said road; also an order of date May 20th, 1869, stating that road No. 46, having heretofore been established, is ordered to be opened. It is insisted by counsel that the court erred in receiving this evidence, because it was not shown that the order establishing the road was based upon a petition signed by twelve house-holders of the township or townships in which the road was established, and that without such petition the court had no jurisdiction to make the order in question. Under the General Statutes of 1865, relating to roads and highways, the objection made would have been at least plausible, if not tenable, but under the act of 1868, which was in force at the time the orders were made, it is neither plausible nor tenable. The 2nd section of said act, (Acts 1868, p. 150,) provides “that the county courts are authorized and empowered, either with or without a petition, in cases where they shall deem it essential to the public good, to cause to be surveyed and located any road or roads,” etc. It thus appears that the presentation of a petition signed by twelve house-holders was not necessarily a jurisdictional fact under the act of 1868, inasmuch as the court had a right to proceed in the location of a road without such petition. The objection is also answered by section 34, Acts 1877, page 401, which provides, among other things, that on the trial of an indictment preferring such a charge as is imputed to defendant, “it shall only be necessary for the prosecution to prove that such a road had been established by order of the county court, and that the same...
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