Kelly v. State

• Decision Date: 23 March 1904
• Citation: 80 S.W. 382
• Parties: KELLY v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

80 S.W. 382

KELLY v. STATE.^*

Court of Criminal Appeals of Texas.

March 23, 1904.

Appeal from Floyd County Court; A. B. Duncan, Judge.

W. N. Kelly was convicted of obstructing a public road, and appeals. Affirmed.

Chas. E. Coombes, Taylor & Coombes, and J. B. Bartley, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

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, yet 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 required 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, Sayles' Rev. Civ. St. 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 Fitch 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 (Tex. Cr. App.) 45 S. W. 578; Allen v. Parker (Tex. Civ. App.) 57 S. W. 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 60 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...