State v. Davis

• Decision Date: 15 May 1912
• Court: North Carolina Supreme Court
• Parties: STATE. v. DAVIS et al.

74 S.E. 916

(159 N.C. 455)

STATE.

v.DAVIS et al.

Supreme Court of North Carolina.

May 15, 1912.

1. Highways (§ 151*)—Offenses—Appeals.

Under Revisal 1905, § 2600, providing that any person may appeal to the superior court from the determination of the county supervisors, and where any proceeding to establish public roads is carried to the superior court, the parties shall have the right to have every issue of fact joined in such proceeding, an appeal from a judgment of the board vacates it, and so, although notified, persons are not guilty of an offense in failing to work an intended road during the pendency of an appeal taken from an order of the board establishing it.

[Ed. Note.—For other cases, see Highways, Cent. Dig. §§ 407-416; Dec. Dig. § 151.*]

2. Criminal Law (§ 882*)—Trial—Special Verdict.

In a criminal prosecution, the facts should be formally stated and embodied in the special verdict by an impaneled jury, and not according to an agreed statement of facts.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2092; Dec. Dig. § S82.*]

Appeal from Superior Court, Henderson County; Long, Judge.

William Davis and another were, in a Justice Court, convicted of a failure to work a road, after notice, and on appeal to the Superior Court were again convicted, and they appeal. Reversed.

Indictment for failure to work road after notice heard on appeal from a justice of the peace and determined as on special verdict before his honor, H. A. Foushee, judge, at March term, 1912, of the superior court of Henderson county. The facts presented in form as a special verdict and agreed upon by solicitor and counsel for defendant are as follows: "That a petition for a public road in Crab Creek township was filed with the board of commissioners, Henderson county. That there was also a counter petition filed. That an order was made by the board of commissioners that the road should be opened. That no further action was taken in the matter, and the road was never opened. That four years thereafter a petition was filed before the board of commissioners, asking that the road be opened according to the order previously made. To this a counter petition was filed. The board of commissioners having ordered that the road be opened, the counter petitioners prayed an appeal to the superior court and gave bond for the costs in accordance with the statute. Pending this appeal, the overseer of the road summoned the defendants to work on the road. The defendants refused to do so, being advised by counsel that pending the appeal the overseer had no right to work the road." Upon these facts, the court being of opinion that defendants were guilty, it was so adjudged, and defendants excepted and appealed.

McD. Ray and H. G. Ewart, for appellants.

The Attorney General and T. H. Calvert, Asst. Atty. Gen., for the State.

HOKE, J. [1] The first order for the laying out of the road was not pursued, and the second application was recognized and dealt with as an original petition both by the parties and the board of commissioners, and, considering the proceedings in that aspect, the case as correctly stated by the Attorney General presents the single question whether defendants can be convicted of the offense of failing to work a public road after being duly notified, while an appeal was pending in the superior court to review the action of the county commissioners establishing the road. The statute applicable to appeals and the effect of them in cases of this kind (Revisal, § 2690) is as follows: "Any person may appeal to the superior court at term time from the determination of the board of county commissioners, and if any person shall appeal from the board on a petition, he shall give bond to the opposing party as provided in other cases of appeal, and the superior court at term shall hear the whole matter anew; and where any proceeding is instituted to lay out, establish, alter or discontinue public roads or to appoint and settle ferries, and the said proceeding is carried to the superior court in term time by appeal or otherwise, the parties to said proceeding shall be entitled to have every issue of fact join-ed in said proceeding tried in the superior court in term time by jury, and from the judgment of the superior court either party may appeal to the supreme court as is provided by law for other appeals." From the broad import of the language and authoritative interpretations of this and similar statutes, as well as from the "reason of the thing, " we...