State v. Malpass

• Decision Date: 01 April 1925
• Docket Number: 275.
• Citation: 127 S.E. 248,189 N.C. 349
• Parties: STATE v. MALPASS.
• Court: North Carolina Supreme Court

127 S.E. 248

189 N.C. 349

STATE v. MALPASS.

No. 275.

Supreme Court of North Carolina

April 1, 1925

Appeal from Superior Court, Pender County; Lyon, Judge.

J. E Malpass was convicted of unlawfully obstructing a public highway, and of unlawfully, willfully, and wantonly injuring personal property of others, and he appeals. No error.

Different counts relating to same transaction, or series of transactions, may be joined, though offenses are not of same grade.

Two criminal actions were instituted against the defendant. It was charged in one bill of indictment that the defendant "did unlawfully and willfully obstruct a public road or highway, by placing nails driven in thin wood and placing them in the public road, so as to stick in automobile tires or by placing nails or tacks in said road, which nails did become fastened or stick in automobiles in large numbers and caused punctures."

In the other bill of indictment, it was charged that the defendant "did unlawfully, willfully, and wantonly injure the personal property of another, or another's to wit, O. F Woodcock, several times between June, 1924, and September 1924, G. E. Maultsby, Dewey Croom, Vance Croom, W. H. Horrell, Willie J. Pridgen, John Porten, Alvin Woodcock, by placing nails or tacks in thin wood and placing same in the public road, to become fastened in automobile tires of the aforesaid owners, causing punctures, and otherwise damaging and injuring said automobile tires while passing upon the public road."

These criminal actions were consolidated and tried together as one bill of indictment with two counts.

C. E. McCullen, of Burgaw, and L. Clayton Grant, of Wilmington, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

VARSER J.

The defendant complained because the trial court consolidated the two cases and tried them together, as upon one bill of indictment, with two counts. In this order we can perceive no error whatever. It was, not only proper to consolidate these cases and try them together, instead of "taking two bites at the cherry," but it would appear that C. S. § 4622, makes it the duty of the trial court so to do.

Both offenses charged are of the same grade, being misdemeanors, and the punishment for each is the same. When this is the case, the right to join the counts in one warrant of indictment has always obtained in North Carolina. "Each count is, in fact and theory, a separate indictment." State v. Toole, 106 N.C. 736, 11 S.E. 168; State v. Mills, 181 N.C. 530, 106 S.E. 677; State v. Bose Brown, 182 N.C. 761, 108 S.E. 349. This rule was in vogue in this state for many years prior to the enactment of C. S. § 4622 (Public Laws 1917, c. 168). State v. McNeill, 93 N.C. 552.

Prior to C. S. § 4622, in State v. Watts, 82 N.C. 656, the court said:

"The rule for joining different offenses in the same bill of indictment is that it always may be done when the grade of the offenses and the judgments are the same."

Also, in State v. Speight, 69 N.C. 72, the court approved the joinder of separate counts, since the grade of the offenses and the punishments were the same.

The rule in this state now is that different counts relating to the same transaction, or to a series of transactions, tending to one result, may be joined, although the offenses are not of the same grade. State v. Lewis, 185 N.C. 640, 116 S.E. 259; State v. Burnett, 142 N.C. 578, 55 S.E. 72; State v. Howard, 129 N.C. 585, 40 S.E. 71; State v. Harris, 106 N.C. 683, 11 S.E. 377; State v. Mills, supra; C. S. § 4622.

The reasons against such a joinder, under the English cases, do not now obtain, as pointed out by Adams, J., in State v. Lewis, supra. In State v. Mills, supra, as in the case at bar, there was no motion to quash or to require the state to elect.

State v. McNeill, supra, relates to felonies, and the case at bar relates only to misdemeanors. In the McNeill Case, the court, through Merrimon, J., says:

"Distinct felonies of the same nature may be charged in different counts in the same indictment, and two indictments for the same offenses may be treated as one containing different counts. * * * This, certaintly, may be done, and we can see no substantial reason why the same rule of practice may not apply to several indictments against the same parties for like offenses, when the just administration of criminal justice will thereby be subserved."

The evidence in the case at bar makes only one narrative. One connected story may be told covering the entire transaction, or series of transactions. Therefore C. S. § 4622, clearly applies and makes plain the duty of the court to consolidate the indictments.

It appears from the evidence that the defendant lived near the highway, and that he was seen to come out from his house and put a block of wood, which was some 3 to 5 inches in length, and one-half inch in thickness, with sharpened nails driven through it, so that the sharp points would stick up in the ruts where automobile wheels ran, and the block was so covered with sand that only the ends of the nails would protrude above the sand. These nails in the blocks of wood (and sometimes pieces of hoop iron with nails likewise driven through them were used) would stick through the automobile tires and cause punctures and serious damage to the automobiles and much inconvenience and hindrance to travel on this highway. There was much evidence tending to show a continued nuisance, resulting from such practices, to the traveling public. Many witnesses saw the different parts of these transactions, and the evidence was ample to sustain a conviction on both counts.

The defendant contended that he was not present at the time when the state's witnesses testified that they saw him place one of the blocks, and that he was not guilty of placing any of these things in the highway, and was elsewhere each time such occurances took place. The jury, however, accepted the state's view of the case and convicted the defendant on both counts.

In his second exception, the defendant contends that the testimony is not sufficient to constitute an obstruction to the public road, or highway, as contemplated by C. S. § 3789. This section uses the word "obstruct." The trial court charged the jury that, if the defendant placed this block, with two nails in it, or any of these blocks, in the road in the ruts, where automobiles are accustomed to run, such would constitute an "obstruction" to the public highway; thereby holding, as a matter of law, that these pieces of wood and hoops with nails driven through, so as to cause serious damage, hindrance, and delay to the traveling public, was an "obstruction."

The original meaning of the word "obstruction" probably did limit itself to the idea of "building up," before or against, to "block up," to "stop up," or "close up," being formed from the Latin verb "obstruere." Long ago usage broadened its meaning so as to include the idea of delay, impeding, or hindering. State v. Edens, 85 N.C. 522.

In State v. Godwin, 145 N.C. 464, 59 S.E. 132, 122 Am. St. Rep. 467, the obstruction was a fence, and the test applied was whether it rendered the use of the public highway, a street, less convenient. People v. Eckerson, 133 A.D. 220, 117 N.Y.S. 419, holds that, if the impediment prevents free passage along the highway and renders it difficult for travel, it is an "obstruction." An "obstruction is a blocking up with obstacles or impediments; impeding, embarrassing, or opposing the passage along and over a street, or highway." Chase v. Oshkosh, 81 Wis. 313, 51 N.W. 560, 15 L. R. A. 553, 29 Am. St. Rep. 898. Interfering with free passage along a highway constitutes an "obstruction," in Davis v. Pickerell, 139 Iowa, 186, 117 N.W. 276.

"An obstruction, like dirt on a boy's face, is merely matter out of place, and that which may be a steppingstone, when in a position where it is needed and can be used as such, becomes an obstruction when occupying a place intended for other use, and where it is not needed and cannot be so used," says McCormack v. Robin, 126 La. 594, 52 So. 779, 139 Am. St. Rep. 549.

In Jennings v. Johonnott, 149 Wis. 660, 135 N.W. 170, an obstruction is defined to be:

"Any object unlawfully placed within the limits of a highway is an obstruction if it impedes or seriously inconveniences public travel or renders it dangerous, and it is not at all necessary that such object should stop travel in order to be an obstruction."

This case, with a wealth of authority, analyzes and discusses the reasons for this definition of an "obstruction."

Viewed in the light of these authorities, it is clear that the charge was correct, and properly defined an "obstruction." It is interesting to note, in this connection, that the defendant himself, in his testimony, referred to these blocks of wood, equipped with nails, as "obstructions." While such a statement on his part would not affect the question of law involved, it does show how such things are understood in ordinary, everyday affairs.

The court charged the jury that--

"If the defendant put out these nails, or any of them, for the purpose of injuring an automobile or a motor vehicle of any kind of any one else, that would be wanton, and, if that some one's property was injured by reason of placing these things in the road, that the defendant would be guilty under the second count in the consolidated bill of indictment, if he did it willfully and wantonly."

Under our statute, C. S. § 4331, the evidence on the part of the state, which the jury has found to be true, is sufficient to sustain the charge of the court.

In State v. Martin, 141 N.C. 832, 53 S.E. 874, the evidence disclosed that defendant threw a rock at a street car and...