Johnson v. State
| Citation | 58 S.E. 265,1 Ga.App. 195 |
| Decision Date | 13 February 1907 |
| Docket Number | 180. |
| Parties | JOHNSON v. STATE. |
| Court | United States Court of Appeals (Georgia) |
Syllabus by the Court.
Criminal statutes are to be strictly construed; and it cannot be presumed, as against the defendant in a criminal case, that the Legislature (in the absence of a formal expression of such purpose) intended to enlarge or extend the previously well-defined legal meaning of terms employed by that body in a new act, so as to make a new classification or cause the descriptive words to include an additional class of objects to that formerly understood by such terms.
[Ed Note.-For cases in point, see Cent. Dig. vol. 44, Statutes §§ 302-306, 322.]
If the criminality of an act depends upon the place where it is committed, the allegation of place is material; and variance between the allegation and the proof is fatal.
(a) Proof that a road was commonly and largely used by the general public for a number of years, without more, will not support an allegation that such was a "public" highway, or a "public" road.
(b) The words "public highway" denote a generic term. The words "a public road," when used in an indictment based upon the act of 1905 (Acts 1905, p. 114), are descriptive of a species whose identity and characteristics are fixed by law, and are material; and the allegation must be sustained by proof.
[Ed Note.-For cases in point, see Cent. Dig. vol. 27, Indictment and Information, §§ 544-547.]
The terms "public highway" and "public road" are not synonymous.
(a) The word "road" refers to the piece or strip of land taken. "Way," in legal parlance, merely denotes an easement, and that the land has been subjected to servitude.
(b) "Highway" is also a generic term, which includes other uses besides the right of ordinary locomotion over land which has been subjected to public use.
A road can be proved to be a public road-i. e., in use as a public highway-in four ways. A public road is created in four ways (1) By a legislative enactment; (2) by action of the proper county authorities; (3) by dedication; (4) by prescription.
In the absence of proof of the establishment of a public road by legislative enactment, or by action of the proper county authorities, evidence of 20 years' use and working by the proper authorities will create a public highway, generally called a "public road," by prescription; and proof of 7 years' use, if accompanied by evidence of intention to give a way on the part of the owner, and like evidence of acceptance on the part of the public authorities, will establish a dedication.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, §§ 1-10; vol. 15, Dedication, § 13.]
Consequently, where one is indicted for being intoxicated on a public highway, it is error to charge: "If the evidence shows you *** that this road was used by the public for a number of years, or *** by a community of people for any number of years, as a matter of convenience or necessity, *** or for the regular use of travel, it would not be incumbent upon the state to show that it was a public road or private highway, established by law or the county authorities, and maintained as such."
It is, for the same reason, error to instruct the jury as follows: "I charge you that it is immaterial as to whether or not this road was maintained by the public or county authorities as a public highway or private way; but if you find that this road was used as a highway by a community of people for any number of years, as a means of ingress or egress to and from their homes, and that the crime was committed on said road by this defendant, it would be your duty to find him guilty."
Error from City Court of Douglas; Roan, Judge.
One Johnson was convicted of being intoxicated on a highway, and he brings error. Reversed.
J. W. Quincey, for plaintiff in error.
M. D. Dickerson, Sol., and W. C. Lankford, for the State.
The defendant in the court below was indicted for the offense of being intoxicated on a public highway. The wording of the act (Acts 1905, p. 114), so far as material in this case, is as follows: "It shall be unlawful for any person *** to be and appear in an intoxicated condition on any public street or highway." Upon the trial the jury convicted the defendant. He asked for a new trial, which was refused, and he now excepts to the judgment of the trial judge in overruling his motion, and assigns error thereon.
In the amendment to his motion, approved by the court, the defendant complains that the court erred in the following charge: The plaintiff in error assigns two errors on the foregoing charge: (1) That it authorized the verdict of guilty, when the evidence showed that the offense charged was not committed on a public highway, as contemplated by the act of the Legislature making drunkenness on a public highway a violation of law; (2) that the charge intimated that a crime had actually been committed. The second ground of the exception was abandoned in the argument in this court. There is but one question, therefore, to be settled in this case, as the evidence would authorize the jury to have found that the defendant was intoxicated; and the purpose of our inquiry will be to ascertain what the Legislature intended by the words "public highway" in the act, and what is the true meaning of the words "public road" in the indictment. If the place where the defendant was alleged to be intoxicated, as shown by the evidence, is a public highway, then the verdict of the jury is right. If the evidence adduced and appearing in the record does not show the place where the acts of the defendant were committed to be a public road and public highway, then the charge of the trial judge was erroneous, and the verdict should be set aside.
It is insisted by state's counsel that the lawmakers intended to protect all highways which are used by the public and which are in this sense public; and the question is asked "If the Legislature intended to make it a criminal offense for a person to be intoxicated on public roads established by law, why did the act not say such public roads as are statutory or established by law?" In the opinion of the members of this court, the peace and quiet of the citizen who lives on any road which is used for travel by the public is entitled to the same protection, by similar means, to that provided in this healthful statute for those who happen to live on public roads, and it is the prerogative of the Legislature to so amend the act of 1905 as to make this the law; but it is not within the jurisdiction of this or any other court to legislate, and the fact that in the very creation of this court it is bound by the decisions of the Supreme Court largely limits our power to construe. So while we think, for ourselves, that all roads are alike entitled to protection, it cannot be presumed that the Legislature did not know the meaning of the terms it chose to employ in its act. It is rather to be inferred, and is clear to our mind, that for some sufficient reason the legislative mind did not see proper to apply the operation of its act to roads which might cease to be used at the will of those who owned and controlled them; i. e., at the will of the owners of the fee. Criminal statutes are to be strictly construed with a view to protecting every right of the citizen, and as against the defendant in a criminal case it cannot be presumed that the Legislature intended to enlarge and extend...
To continue reading
Request your trial