1 Ga. App. 195 | Ga. Ct. App. | 1907
The defendant in the court below was indicted for the offense of being intoxicated on a public highway. The wording of the act (Acts 1905, p. 114), so far as material in this case, is as follows: “It shall be unlawful for any person . . to be and appear in an intoxicated condition on any public street or highway.” TTpon the trial the jury convicted the defendant. He asked for a new trial, which was refused, and he now excepts
Criminal statutes are to be strictly construed with a view to protecting every right of the citizen, and as against the defendant in a criminal case it can not be presumed that the legislature intended to enlarge and extend the previously well-defined meaning of terms employed by them to constitute a crime; more especially as the words “public street and highway” had been defined by the courts of this State and had a fixed and definite meaning. The term “public road” is not only distinguished from “private way,” but it must mean a way not only used by the public, but maintained, repaired, and controlled by the proper authorities having in charge the public roads. Penalties are affixed for various viola
That a variance between the allegations in an indictment which are material and the proof offered in support thereof is fatal is axiomatic. And “if the criminal character of the act depends upon the- locality in which it is committed, the allegation of place becomes material, . •. furnishes an essential feature in the description of the offense, must be accurately laid, and matter of local description must be proved.” If, therefore, the proof in this case (as we think) does not show that the place where the defendant appeared intoxicated was the same place or such a place as is alleged in the indictment, the variance will be fatal. In our judgment the place shown by the evidence is a piece of land owned and worked by private individuals over which the public is permitted, at the will of the owners, to pass and repass as may suit the convenience, necessity, or pleasure of the passer by, but which has never become either the public highway mentioned in the statute, or the public road used to describe it in the indictment. In our opinion the error in this case arose from. confusing a road used by the public with a public road. There can be no doubt that the State proved that the locality where the defendant is alleged to have been intoxicated is a road, which simply means a piece of land either used or appropriated for travel. But the indictment alleged “a public road,” and the statute penalizes drunkenness on the “public highway.” Thus it became essentially material to be shown whether the road in question' was a public road and public highway. We think there is a fatal variance between the proof and the allegations made, not because the location was not a road, but because it was not shown to be a public road, and because, on the contrary, the evidence established the fact that it was noi a public road. So far as the general and continuous use by an entire community is concerned, the proof is sufficient, but mere use is
The terras "public highway” and "public road” are not synonymous. We sometimes use the term "road” in ordinary conversation in the same sense as "way,” but in legal parlance this is improper. “Koad means any piece of land used or appropriated for travel.” "Way . . means nearly the same thing as ‘right of way;’ or in other words, the right of one person, . . or of the community at large, to pass over the land of another.” Choller-Potosi Mining Co. v. Kennedy, 93 Am. Dec. 416. The word used in the statute is “highwajq” which is defined by 1 Bouv. Law-Diet. 750, to be “a passage, road, or street which every citizen has a right to use.” But even this definition is not exhaustive; because the term may be applied more broadly. Abbott’s Law Dictionary says, "There is a difference in the shade of meaning conveyed by two uses of the word. Sometimes it signifies right of free passage, in the abstract, not importing anything about the character or construction of the way. Thus a river is called a highway. . . Again, it has reference to some system of law authorizing the taking of a strip of land, and preparing and devoting it to the use of travellers; in this use, it imports a roadwajr upon the soil, constructed under the authority of these laws.” We may say then, in brief, that the word "road” refers to the land; "highway” denotes the easement, and that the land taken has been subjected to servitude, "carrying with it the right to use the soil for the purposes of repair and improvement; and in cities, for the more general purposes of sewerage, the distribution of light and water, and the furtherance of public morality, health, trade and convenience.” A highway -may be a road, but a road is not necessarily a public highway. To be a public highway it must be, as stated in the indictment in this ease, a public road.
It being settled, then, that the statute has reference to only such public roads as are public highways, we come to consider the nature of the proof required to show whether a given locality is within the descriptive term “a public road.” A public road can be created in four ways: .(1) by a legislative enactment; (2) by action of the proper county authorities; (3) by dedication, and (4) by prescription. No effort was made to prove the character of the road in this case, as coming under either of the first two
It being further true that the use by the public of Mr. Oberry’s property is not necessarily inconsistent with the retention of dominion by him, we think that the State failed to show dedication as to the road in question. Nor will the evidence authorize the conclusion that the road had become a public road by prescription, because it nowhere appeared that the public had used and maintained it as a highway for a period of twenty years or more. In Southern Railway Co. v. Combs, 124 Ga. 1010, the court (while declining to determine the exact term of use by the public and working by public authorities necessary to make a road a public road by prescription) says, "It is certain that a road may become a public road when it has been used by the public and worked by the public authorities for twenty years.” And we will add that twenty years’ use, and work, maintenance, and control by the public road authorities, are required to fix title in the public as well as in the citizen, where possession adverse to the owner alone is relied upon. In the recent case of Kelsoe v. Oglethorpe, 120 Ga. 951, the Supreme Court held that twenty years’ adverse possession was necessary to work a non-user of a public road once established. So we think there is no question that evidence of twenty years’ possession and use would be required were a prescriptive title relied upon instead of proof of dedication, or an order passed by the proper county authorities, or a legislative enactment. Many of the eases in which the question has been raised as to what constitutes a public road in Georgia have arisen under the Civil Code, §2222, which relates to railroad crossings over public roads. We have examined, perhaps, all of these cases, and it appears that up to and including the case of Georgia R. Co. v. Cromer, 106 Ga. 296, the view was entertained that the words "public road” were qualified by the words “established pursuant to law.” And while it was not directly decided, an inference could have been drawn, from the earlier decisions, that the existence of a road as a public road must be shown by a public record, at least in so far as the terms were applicable to §2222. By later decisions, however, the rules we have laid down above have been recognized, and the classification of the four methods of proof we have adopted is authorized. And the
In view of what we have stated, the charge we have quoted in this opinion, and which was given by our learned brother of the trial bench in this case, was erro,neous. And after reviewing a multitude of authorities in addition to_ those we have cited, we return to the words of the first headnote in Hart v. Taylor, 63 Ga. 156. “A neighborhood road used by a settlement of people, great or small, is not a public road in the sense of the Georgia Code, and in the common parlance of our people.” Placing this in juxtaposition with the charge that “it is immaterial as to whether or not this road was maintained by the public or county authorities as a public highway or private way, but if you find that this road was used as a highway by a community of people for any number of years, as a means of ingress or egress to and from their homes, and that the crime was committed on said road by this defendant, it would be your duty to find him guilty,” we are compelled to reverse the judgment of the court below". Judgment reversed.