34 Ill. 297 | Ill. | 1864
delivered the opinion of the court:
Ho objection is perceived to the first and second counts of the indictment. Even if the third is defective, which we deem unnecessary to determine, the good counts will support the judgment. The rule is of uniform application, that a conviction on a general verdict will be sustained, although some of the counts are faulty, if there be one good count in the indictment. The first and second counts being good, they will sustain this general verdict and the 'judgment of conviction. We must presume, unless the contrary appears, that the conviction was under the good, and not under faulty counts.
The principal question, however, in this case, relates to the location of the road in controversy. The dispute seems to be, where the road was actually located. The plat of the road calls for the line, dividing the government lands, as made by its surveyors. The plat made and returned by the commissioners, when they located it, is unquestionably legitimate evidence, but is not conclusive as to where the place, or precise line, may be found. Like the field notes of the government surveys, they always control, unless it is made to appear that lines and corners are different from the calls of the field notes.
When the original line or corner is found, and it conflicts with the calls of the field notes, the former must govern. The survey, as it was actually made, is the thing, and the field notes are designed to describe and represent it, and a misdescription of the actual survey as made, cannot alter or change the survey itself. In the absence of evidence to show that the lines and corners were actually placed differently from the calls in the notes, they must govern. So with the map or plat returned by the commissioners. The field notes describe the lands surveyed, and the plat describes the ground appropriated for public use, and the design of both is to find the particular tract or strip of land, when further occasion shall require, hi or does this plat differ from the notes of the survey of any other tract of land.
The issue before the jury for trial was, whether appellant had obstructed a public highway. And to determine that fact, it was necessary to 'find the precise line or place where the commissioners actually located the road, and then determine whether the obstruction was on the ground over which it was located. It is not disputed, that a road was located near the place claimed; but it is denied that it was on the line of the road. On this question many witnesses were examined, the plat of the road was introduced, and other surveys were referred to by witnesses; and, as might be supposed, this evidence does not all harmonize. It was, therefore, the province of the jury, to carefully consider the whole evidence, and determine where the road was located, and determine whether it was obstructed as located. After a careful examination, we are of the opinion, that the evidence warrants the conclusion at which the jury have arrived. At any rate, the finding is not so manifestly against the weight of evidence as to require us to disturb the verdict. Nor do we perceive any objection to the instructions given, or error in the modifications made before they were given. The judgment of the court is therefore affirmed.
Judgment affirmed.
