State v. Rodman

• Decision Date: 13 June 1910
• Parties: STATE v. RODMAN.
• Court: South Carolina Supreme Court

68 S.E. 343

86 S.C. 154

STATE v. RODMAN.

Supreme Court of South Carolina

June 13, 1910

Appeal from General Sessions Circuit Court of Chester County; Ernest Moore, Special Judge.

John Rodman was convicted of obstructing a public highway, and he appeals. Affirmed.

Gaston & Hamilton, for appellant. J. K. Henry, Sol., for the State.

GARY A. J.

This is an appeal from the sentence imposed upon the defendant for obstructing a public highway. The indictment under which the defendant was tried charged that he did willfully and unlawfully close up and obstruct a certain highway and public road, leading from the (public highway by the) plantation of James F. Reid into the main public road from Fishing Creek Church, to market at Smith's Turnout. The record contains the following statement: "It is hereby agreed that the words in the indictment inclosed in parenthesis, 'public highway by the,' were added to the indictment, as an amendment thereto, by the state, after it had closed, under order of the presiding judge permitting the amendment, over defendant's objection."

The first question that will be considered is whether there was error on the part of his honor, the presiding judge, in permitting the said amendment. Section 56 of the Criminal Code contains this provision: "Every indictment shall be deemed and judged sufficient in law which, in addition to allegations as to time and place, as now required by law charges the crime substantially in the language of the common law or of the statute prohibiting the same, or so plainly that the nature of the offense charged, may be easily understood." Section 57 is as follows "Every objection to any indictment, for any defect apparent on the face thereof, shall be taken by demurrer, or on motion to quash such indictment, before the jury shall be sworn, and not afterwards." Section 58 is as follows "That if there be any defect in form, in any indictment, it shall be competent for the court, before which the case is tried, to amend the said indictment: Provided, such amendment does not change the nature of the offense charged; that if on the trial of any case, there shall appear to be any variance, between the allegations of the indictment, and the evidence offered in proof thereof, it shall be competent for the court, before which the trial shall be had, to amend the said indictment according to the proof: Provided, such amendment, does not change the nature of the offense charged; and after such amendment the trial shall proceed in all respects and with the same consequences, as if no variance had occurred, unless such amendment shall operate as a surprise to the defendant, in which case the defendant shall be entitled, upon demand, to a continuance of the cause." The exceptions raising this question cannot be sustained for the following reasons: (1) The indictment as originally drawn charged the obstruction of a highway or public road by building a wire fence across the same, and the offense was set out so plainly that the nature thereof might be easily understood. The amendment related to the detailed description of the offense, and, after the indictment was amended, it still charged the same offense, to wit, the obstruction of a highway or public road. (2) The defect was apparent upon the face of the indictment, and the objection should have been taken by demurrer or on motion to quash before the jury was sworn. State v. Gilchrist, 54 S.C. 159, 31 S.E. 866; State v. Philips, 73 S.C. 236, 53 S.E. 370; State v. Weaver, 74 S.C. 417, 54 S.E. 615; State v. Hamilton, 77 S.C. 383, 57 S.E. 1098; State v. Means, 80 S.C. 401, 61 S.E. 898. (3) It was competent for the court to amend the indictment so as to conform to the proof when there was a variance between the allegations and the evidence offered in proof thereof, as it was not made to appear that the amendment changed the nature of the offense, or that it operated as a surprise to the defendant.

The next question that will be considered is whether the circuit judge erred in refusing to direct a verdict in favor of the defendant on the ground that there was no testimony whatever tending to prove that the public had acquired a right of way through the defendant's uninclosed wood land by continuous and adverse user for the period of 20 years.

We quote from the testimony of the following witnesses:

J. F. Reid: "Q. When Mr. Rodman bought that land, all this land in here was in original forest? A. Most of it. Q. And he has cleared it up, and put it in cultivation since he got hold of it? A. Yes, sir. Q. And the roadway where people traveled in there, before he bought the land, was not inclosed by any fence or anything of that kind? A. I don't think so. Part of it was, and part of it was not. Q. How much? A. I can't remember. I remember there was a big fence through there when I was a boy. Q. When he bought it, was it all in woods? A. I think so. The biggest part of it. Q. And there was no fence there then? A. No, sir. Q. Which one of these roads was it, you say, had been shifted after Mr. Rodman bought the place? A. This road has been shifted (indicating). The whole travel used to go down here, somewhere (indicating), and went through the woods; and he has cut that out and moved it over."

Hugh Jennings: "Q. You say you didn't know anything about this situation until seven years ago? You were a stranger in that community until then? A. Yes, sir. Seven ...