Territory of Arizona v. Richardson

• Decision Date: 26 March 1904
• Docket Number: Criminal 179
• Citation: 8 Ariz. 336,76 P. 456
• Parties: TERRITORY OF ARIZONA, Plaintiff and Appellant, v. R. R. RICHARDSON, and JAMES JOHNSON, Defendants and Respondents
• Court: Arizona Supreme Court

76 P. 456

8 Ariz. 336

TERRITORY OF ARIZONA, Plaintiff and Appellant, v. R. R. RICHARDSON, and JAMES JOHNSON, Defendants and Respondents

Criminal No. 179

Supreme Court of Arizona

March 26, 1904

APPEAL from a judgment of the District Court of the First Judicial District in and for the County of Santa Cruz. George R Davis, Judge. Affirmed.

The facts are stated in the opinion.

E. W Wells, Attorney-General, and Smith & Ives, for Appellant.

Hereford & Hazzard, for Respondents.

OPINION

KENT, C.J.

Section 524 of the Penal Code of Arizona reads as follows "Every person who maliciously digs up, removes displaces, breaks or otherwise injures or destroys any public highway or bridge, or any private way laid out by authority of law, or bridge upon such highway or private way, is punishable by imprisonment in the territorial prison not exceeding five years, or in the county jail not exceeding six months." Under this section an indictment was found against the defendants in the following terms: "R. R. Richardson and James Johnson are accused by the grand jury of the county of Santa Cruz, territory of Arizona, by this indictment, found on the 22d day of December, A.D. 1903, of the crime of digging up a private way laid out by authority of law, committed as follows, to wit: The said R. R. Richardson and James Johnson on or about the 17th day of September, A.D. 1903, and before the finding of this indictment, at the county of Santa Cruz, territory of Arizona, did unlawfully, willfully, feloniously, and maliciously dig up a private way laid out by authority of law, to wit, the private way in said Santa Cruz County, territory of Arizona, leading from the county road between Harshaw and Washington Camp to the Trench Mine, by digging a shaft across the center of said private way, said shaft being about six feet long, four feet wide, and five feet deep, at a point about one hundred and fifty feet from the said county road leading from Harshaw to Washington Camp, contrary," etc. A demurrer was interposed to this indictment on the ground that the indictment did not charge a public offense or any offense against the defendants; that the indictment failed to charge that the way was a private way, or what private way was intended, or to whom the same belonged, or whether the digging was without the consent of the owner of the way, or whether the way was laid out by authority of the law of Arizona or elsewhere; and that the indictment was not direct and certain as to the offense, or as to the circumstances of the offense. The demurrer was sustained by the court, and the territory has brought this appeal.

We find in the Revised Statutes the following provisions pertinent to the question raised on this appeal: --

"Par 3956. All roads and highways in the territory of Arizona which have been located as public highways by order of the board of supervisors, and all roads in public use which have been recorded as public highways, or which may be recorded by authority of the board of supervisors, from and after the passage of this title, are hereby declared public highways; and all roads in the territory of Arizona now in public use, which do not come within the foregoing provisions of this section, are hereby declared vacated. . . .

"Par 3972. The board of supervisors, on presentation of a petition, signed by ten or more persons, residents of the county, and paying road taxes therein, praying for a public road to be laid out or changed within the county, or a petition signed by one or more persons, praying for a private road or lane to be laid out from the ranch or dwelling of any person to the public road, and designating the location of the road to be established as prayed for, shall cause notice . . .; provided, that all damages and expenses accruing from the location of any private road or lane shall be paid by the party or parties petitioning for said road; and the board of supervisors may, before acting upon any petition for such private road or lane, require such a bond from the party or parties so...