State v. Miller
| Decision Date | 21 February 1905 |
| Citation | 85 S.W. 912,110 Mo.App. 542 |
| Parties | STATE OF MISSOURI, Respondent, v. MILLER, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Texas Circuit Court.--Hon. Leigh B. Woodside, Judge.
The defendant Miller was informed against and convicted of the offense of unlawfully obstructing a public highway in Texas county, Missouri, leading from Cabool to Mt. Grove, and known as the Cabool and Mt. Grove road. The alleged obstruction was placed in said road where it crossed defendant's farm and consists of a fence built across the road in the year 1899. The information was filed by the prosecuting attorney November 11, 1903, and averred that the fence, though originally erected across the road in 1899, had remained there as an unlawful obstruction ever since. In 1897 a petition was presented to the county court of Texas county signed by many persons and reciting that more than twelve of them were freeholders, asking that the road in question be diverted from part of its course and a new route opened for a designated distance. In other words, the petition was for a change of the road, describing the old route and the one the petitioners wished to open in lieu of it. Due notice was given by posting handbills of the intended application for the change of the road, and on proof of this fact, the county court entered an order to grant the change petitioned for at the expense of the petitioners, ordered the road commissioner to survey and mark out the course of the road, take relinquishments of right of way and report what he had done at the August term, 1897, of said court. His report was filed in due time and on November 3, 1897, the court approved it. The report is quite full as to the course the road should run after the contemplated change, the names of persons who had relinquished right of way, the description of their property the land given for right of way, and the names of two landowners through whose lands the road would run who refused to relinquish right of way. It contains no estimate of the costs of the construction of the new road in making culverts bridges and grading, nor a statement of the amount of damages claimed by the property-owners who had refused to relinquish right of way. Subsequently in March, 1899, a petition signed by numerous citizens was presented to the county court asking the court to reopen the road upon the course it had run previous to the change. This petition was rejected. The following admission appears in the transcript:
"It is admitted in open court by the prosecuting attorney and the defendant, that the defendant got a written order from the clerk of the county court which was given by the direction of a majority of the judges of the county court, to close up the road in question."
It was shown the court was in session when the order to close the old route was given to the defendant. He acted under the order and then turned it over to the railway company whose line the new road crossed, for the company to go by in putting in a crossing. Part of the old road which was abandoned in favor of the new one, ran across the defendant's farm and he built a fence across it. It appears that the defendant was opposed at first to the change of route; but after it had been ordered by the county court and a written order had been issued to him to open the new route and close the old one, he obeyed the order.
Of its own motion the court instructed the jury as follows:
All the instructions asked by the defendant were refused. They need not be copied.
Judgment reversed.
T. J. Hale and Lamar, Barton & Lamar for appellant.
(1) The court should have directed an acquittal, because the county court record is sufficient to change the road. All jurisdictional facts sufficiently appear somewhere in the proceeding. Sutton v. Cole, 155 Mo. 206, 55 S.W. 1052. (2) The findings and judgment of the county court are not open to collateral attack and its judgment is entitled to every presumption in its favor. Baubie v. Ossman, 142 Mo. 499, 44 S.W. 338. (3) When we consider the pleadings and entire record, all obscurity is dispelled and the intention of the court made apparent. This we are entitled to regard and have the record as thus explained given effect. Clay v. Hilderbrand, 34 Kan. 694; 1 Black on Judgments, sec. 123. This is certainly true in a criminal prosecution. (4) The uncontradicted evidence tended to show that defendant acted in entire good faith under the direction of the county court. Defendant's first refused declaration of law submitted this as a defense. This was error. State v. White, 96 Mo.App. 34, 69 S.W. 684; State v. Ferguson, 82 Mo.App. 583; State v. Preston, 34 Wis. 682.
OPINIONGOODE, J. (after stating the facts).
It is conceded by the State that the defendant acted pursuant to the written order or process of the county court in closing the old road, but is contended that the order affords him no protection, because said court was without jurisdiction of the matter. The warrant or process to the defendant is not before us; but the State has made no point against its form or regularity and we shall assume, in disposing of the appeal, that the order was fair on its face, contained nothing to show the county court acted without jurisdiction of the cause and directed the defendant to close a stretch of the old road which included the point where he built his fence. This is taken for granted in the briefs of both parties and may be considered as covered by the admission made in open court. The essential controversy turns altogether on whether the county court had the jurisdiction requisite to enable it to issue a writ that would protect the defendant in closing the old road. The jurisdiction of the county court is assailed on several grounds. It is said the court granted the petition for the change of road and ordered the road commissioner to mark out the new route without previously finding that the petition was signed by twelve freeholders, without finding that notice of the intended application had been given as required by the statute, at the term of court when the petition was presented, before the court had heard testimony as to the necessity or practicability of the change, the probable damages to non-consenting landowners and the expense of locating the changed road, and before the road commissioner had been ordered to view and mark out the the road or had made a report of the cost of construction and the other matters he is required to report. By reason of the foregoing facts it is contended the county court acted without jurisdiction. The description of the proposed new route contained in the entry of record of the order granting the prayer of the petitioners and directing the road opened, is asserted to vary from the description of the proposed route in the petition itself, and the route designated by the county road commissioner to differ from both prior descriptions.
The entry of the order granting a change of road and directing the road commissioner to mark out a new route, has no recital that the petition was signed by twelve freeholders; but we think it should not be held, in this collateral proceeding, that the county court was without jurisdiction on account of the absence of this recital. That very point was decided in Snoddy v. Pettis County, 45 Mo. 361, in which case the court said:
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