State v. McCray
| Decision Date | 31 October 1881 |
| Citation | 74 Mo. 303 |
| Parties | THE STATE v. MCCRAY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.
AFFIRMED.
This was an information for obstructing a public road, originally drawn in two counts. There was a nol. pros. as to the second count. The first was as follows: “William McAfee, prosecuting attorney of the county of Caldwell, informs the court that at all the dates hereinafter mentioned there was and yet is a certain public road in the said county of Caldwell, commonly called the Brunswick and Savannah road, which said road, after passing through the town of Kingston, extended from the western end of that public street in the town of Kingston commonly called Broadway, which terminates at the eastern line of the north half of the southwest quarter of the southeast quarter of section 21, in township 56, range 28, in a westerly direction to the western line of the north half of the southwest quarter of the southeast quarter of said section 21, and thence in a northwesterly direction to the towns of Cameron and Savannah, which said public road was laid out, established and maintained pursuant to the laws of this State for the people of this State to pass and travel upon at their free-will and pleasure, and that on the 1st day of May, 1877, the defendant, James C. McCray, at that point of the said public road in said county of Caldwell where the east line of the tract of land above described crosses the said road, did unlawfully, injuriously, willfully and knowingly obstruct the said public road, by then and there constructing and causing to be constructed over and across the said public road a rail and worm fence of the length of eighty feet, and of the height of five feet, and by then and there willfully and knowingly keeping, continuing and maintaining the said rail and worm fence from the date aforesaid until the presentation of this information upon and across said public road, by which said road, during all the time aforesaid, was so obstructed that the people could not pass over or travel upon the same so freely as they were wont to do, to the common damage and nuisance of all the people of the State, and against the peace and dignity of the State.”
This information was signed by the prosecuting attorney, and appended to it was an affidavit to the truth of the statements therein contained, with a jurat attached. The jurat was signed by the clerk of the circuit court but the affidavit was not signed. After the jury were sworn the prosecuting attorney, by leave of court, filed an affidavit to the information in due form.
At the return term the defendant appeared and moved the court to grant a rule on the plaintiff to produce the record of the county court showing the establishment of the road alleged to be obstructed, alleging that defendant had made diligent search for such record and had failed to find it, and if any such existed it was in the possession of plaintiff. This motion was...
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...v. Gens, 83 S. C. 562, 65 S. E. 828; Keehn v. State, 72 Wis. 196, 39 N. W. 372 (but see Scheer v. Keown, 29 Wis. 586). Compare State v. McCray, 74 Mo. 303. In State v. Turner, 170 N. C. 701, 702, 86 S. E. 1019, 1020, the court said: 'Even if one is wrongfully arrested on process that is def......
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