Laroe v. State

• Decision Date: 18 November 1891
• Parties: LAROE v. STATE.
• Court: Texas Court of Appeals

17 S.W. 934

LAROE v. STATE.

Court of Appeals of Texas.

November 18, 1891.

Appeal from Kaufman county court; JOHN VESEY, Judge.

J. E. Laroe was convicted of willfully obstructing a public highway, and appeals. Reversed.

J. D. Cunningham, for appellant. Richd. H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

By information appellant was charged with willfully obstructing a public road and highway. Appellant moved to quash this information, because it charged two distinct offenses. Article 405 of the Penal Code provides: "If any person willfully obstructs * * * any public road or highway, * * * he shall be fined not exceeding five hundred dollars." The information was drawn under this article of the Code. Where several offenses are embraced in the same general definition, and are punishable in the same manner, they are not distinct offenses, and may be charged conjunctively in the same count, or they may be charged in the same indictment in separate counts. Howell v. State, 29 Tex. App. ___, 16 S. W. Rep. 533; Day v. State, 14 Tex. App. 26; Willson, Crim. St. § 1989, for collated authorities. The motion was properly overruled.

Appellant offered in evidence minutes of the commissioners' court appointing a jury of review to lay out and define public roads from Kaufman, leading in the direction of Van Zandt county line, the report of the jury, and the adoption of this report. The state's counsel objected to the introduction of this evidence, because the order establishing the said road had been rescinded by the court, and, in support of this objection, introduced the order of rescission. The objection was sustained, and appellant excepted. The court erred in excluding this evidence. The road alleged to have been obstructed is sought to be identified as the original road, and the defendant was seeking to show that the original road was changed by the said order. Whether these roads are one and the same road is one of the main issues of this case. It is not disputed that the road as originally traveled is some distance south of the road described in the information, and that by various mutations it has been changed to the present locus in quo; but it is claimed by the state that the present road is but a successor of the original one, and therefore the same road. The rejected evidence would have established the road as therein described. The road obstructed is claimed by the state to be the original road. Defendant sought to prove by the said order that the road had been changed by the commissioners' court. The state's position was contested by the appellant. The evidence shows that the obstructed road is some distance removed from the line of the old road as it originally ran. The rescission by the court of the order establishing the road sought to be proven by appellant as laid out by the jury of review could not establish the road alleged to have been obstructed. As to whether or not this order could re-establish the old road it is unnecessary to discuss. If it did not re-establish that road, such failure to do so would not constitute the road alleged to be obstructed a public road. Nor is it necessary to discuss the legality of the order of rescission in order to decide the question involved in rejecting the offered testimony. If the order of rescission was valid and legal, it certainly abolished the road established by virtue of the order which it rescinded. If it is not valid nor legal, then the road, as established by the court, would be the public road. In neither event could either of said orders create a road at the point where appellant placed his fence, because neither the original road nor the one established by the court touched the point of obstruction. The evidence was admissible, because it tended to show, in connection with other facts, that there was no public road at this point of obstruction.

In this connection appellant offered to prove by Erwin that, prior to the time that he built his fence across the road charged to have been obstructed, he informed appellant that he (Erwin) had laid out the said road without an order of the court. This testimony was also admissible as bearing upon the question of the willfulness of the defendant in fencing across the road. Erwin testified, as a fact, that he did open the said road of his own volition and...