49 S.W. 384 | Tex. Crim. App. | 1899
Appellant was convicted in the County Court of Cooke County on a charge of willfully obstructing a public road, and his punishment assessed at a fine of $25, and he appeals.
It appears from the record before us that appellant owned the land on both sides of the road; that the road was a second-class road thirty feet wide, and crossed Timber Creek, which creek has a bridge across it fourteen feet wide and fifty-two feet long, leaving a space of eight *161 feet between the bridge and appellant's fence, on each side thereof. Appellant fenced this eight feet, setting one post within about two feet of each corner of the bridge. The space on both sides of the bridge was obstructed by trees and the banks of the creek on both sides were very steep, such as prevented the public crossing the same. It furthermore appears that this eight-foot obstruction above spoken of was ordered to be cut down by some of the commissioners, and at the instance of the overseer of the road the same was removed on. July 6, 1897. Appellant testified that he replaced the fence upon the advice of counsel. He also stated that he received no pay for the land. The road had been worked for at least fifteen years, and hands assigned to work the same.
Appellant complains of the following charge: "By the word 'willful' is meant that defendant knew at the time of the alleged obstruction that said road was a public road of the second class, and said obstruction was placed there, if it was obstructed, with an evil intent." Appellant's objection to said charge is that it is not the legal definition of the term "willful," as held by the decisions of this court, and that the charge is on the weight of the evidence. It is true that the statutory offense is made to depend upon the fact that the act was willfully done, and it is incumbent on the court, as part of the law of the case, to instruct the jury as to the legal meaning of the word "willful," which means with evil intent or legal malice, or without reasonable ground to believe the act to be lawful. The instruction of the court is in substantial compliance with the definition given above. Loyd v. State, 19 Texas Crim. App., 321.
Appellant's second contention is that the court erred in failing to give a special charge requested by him, to the effect that, if appellant thought he was placing the fence on his land, the jury could not convict, but must acquit, defendant. We do not think the court erred in failing to give a charge of this character. The only question is whether or not it was a public road.
The court did not err in failing to define what constituted a bridge, as contended in appellant's third assignment. The fourth and fifth assignments of error urge that the court erred in its definition of a "public road," and also in not granting a new trial on account of the insufficiency of the evidence to support the conviction. We do not think any error appears in either instance. The charge is not subject to the criticism made, and we think the evidence supports the verdict. We do not see the force of the proposition that because parties could not cross the creek, except on the bridge, that appellant had the right to build the fence along the creek bank to the bridge. No error appearing, the judgment is affirmed.
Affirmed.
DAVIDSON, Presiding Judge, absent. *162
