McDade v. State, 95 Ala. 28

McDade v. State

95 Ala. 28 | Ala. | 1891

COLEMAN, J.

The defendant was indicted and convicted for violating section 4095 of the Penal Code, wbicb provides that “Any person who discharges a gun, or any other kind of fire-arms, along or across a public road, must on conviction be fined,”- etc. The material question is, whether the road along which defendant was travelling at the time he discharged the pistol, was a public road, within the meaning of the statute. The evidence sufficiently appears in the statement of the facts of the .case.

Section 1389 of the Code declares, “No public road can be established, changed, or discontinued, except on application to the court of County Commissioners.” Section 4122 of the Code provides, that to change a public road is a misdemeanor, except by order of the Commissioners Court, unless it straightens the same through inclosures, or renders it more convenient for the public. This section does not authorize any change of a public road, either to straighten it, or to render it more convenient for the public, but simply provides that, when changed for this purpose, it is not indictable.

There is no evidence to show that the “turn-out road”, as it is designated in the record, and from which the pistol was fired, was established by the County Commissioners. James v. Hendres, 34 Ala. 490. In Mills v. The State, 20 Ala. 88, a public road is defined to be “a road dedicated to and kept up by the public, as contra-distinguished from private ways, which are not so kept up.” In the case of Kennedy v. Williams, 87 N. C. 6, it is said : “A public highway is one under the control and kept up by the public, and must either be established in a regular proceeding for that purpose, or be generally used by the public for twenty years, or dedicated by the owner of the soil and accepted by the proper authorities.” — 9 Amer. & Eng. Encyc. of Law, p. 362, and note. In Elliott on Roads and Streets, ch. 1, pp. 2-5, and notes, it is said : “A public road, in legal contemplation, is one over which the public have a general right of passage. No matter whether established by prescription or by dedication, or under the right of eminent domain, it is a highway, if there is a general right to use it for travel. Where the statute declares what shall constitute a highway, it governs, and a way not answering to the requirements of the statute can not be rightfully regarded as a highway.”

It is a general principle of law, that penal statutes must be construed strictly. The evidence shows that, at times, a sand-bed would form in the public road, causing a tempo-*31raxy obstruction or impediment, and while this continued tlie public used the “turn-out road” to avoid the sand-bed. The “turn-out” ran parallel to the public road, through the lands of one Taylor. There is no evidence that the “turnout road” was established by the court of County Commissioners, or that it had been acquired by the public by prescription or dedication. We are of opinion that the court erred in its construction of the law, and under the evidence the defendant was entitled to the general affirmative charge in his favor.

Beversed and remanded.