State v. Turner

• Decision Date: 23 March 1886
• Parties: THE STATE OF MISSOURI, Appellant, v. C. B. TURNER, Respondent.
• Court: Missouri Court of Appeals

21 Mo.App. 324

THE STATE OF MISSOURI, Appellant,

v.C. B. TURNER, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 23, 1886.

APPEAL from the Clarke County Circuit Court, BEN E. TURNER, Judge.

Reversed and remanded.

J. W. REED, for the appellant: Statutes must be construed in reference to the subject matter, the objects which prompted and induced their enactment, and the mischief they were intended to remedy. Neenan v. Smith, 50 Mo. 525; Spitler v. Young, 63 Mo. 42; The State v. Diveling, 66 Mo. 375. The rule which requires penal statutes to be construed strictly, merely restrains such construction as would increase the penalty. Ellis v. Whitlock, 10 Mo. 781. As conclusive of this case and the construction to be placed on the statute under consideration, see case of The State v. Sebastian (81 Mo. 514), and authorities therein cited.

MATLOCK, HILLER & HOWARD, for the respondent.

ROMBAUER, J., delivered the opinion of the court.

The statute provides that, “If any person, or persons, shall wilfully and knowingly obstruct any public road, by throwing or depositing osage orange, or other brush, trees, or bushes, in said road, or on the sides or ditches thereof, or by fencing across the same, or by planting any hedge within the lines established by said road, o changing the location thereof otherwise than is provided for by this act, or shall obstruct said road o highway in any other manner whatsoever, he, or they, shall each pay a fine of not less than twenty dollars, to be recovered by indictment,” etc. Laws 1883, p. 165, sect. 33.

For an alleged violation of this law, an indictment was preferred by the grand jury of Clarke county against the defendant in the following words:

“STATE OF MISSOURI,

)

)

SS.

COUNTY OF CLARKE.

)

In the circuit court of Clarke county, Missouri, October term, 1884.

The grand jurors for the state of Missouri, empanneled, sworn, and charged to inquire in and for the body of the county of Clarke aforesaid, npon their oath present that heretofore, to-wit, on the first day of September, A. D. 1884, and at the county of Clarke, in the said state of Missouri, one C. B. Turner unlawfully, wilfully, and knowingly did obstruct a certain public road or highway leading from Wilson bridge to Alexandria, known as the Alexandria road, and near the center of half section line of thirty-one, township sixty-five, range seven, in Clarke county, Missouri, by digging out a ditch, and by removing the dirt and other material from and out of said ditch that had been there put and placed by the proper authorities, said ditch running along near the center of said public road, to the great hindrance and inconvenience of the public and the citizens of this state.

J. W. REED, Prosecuting Attorney.”

The defendant demurred to this indictment, on the ground that it failed to charge any crime known to the laws of the state, and his demurrer was sustained by the trial court.

The court presumably held that as the indictment did not charge an obstruction in any of the modes enumerated in the statute, it could not be helped by the sweeping clause at the close of the section, “or shall obstruct said road or highway in any other manner whatsoever.”

If this statute had created a new offence, then the holding of the court would have been strictly correct. In such cases it...