| Mo. | Oct 15, 1886
Defendant was tried in the circuit court of Monroe county and convicted and fined twenty dollars under an indictment charging him with obstructing a public road in said county. Prom this judgment he has appealed, and insists by his counsel that, inasmuch as defendant was indicted in April, 1883, under the law as it stood in the revision of 1879, and inasmuch as the law of 1879 was repealed by an act of the legislature in 1883 (Acts of 1883, p. 170, sec. 60), having no-saving clause as respects penalties for past offences, that for that reason the court erred in overruling his objec-. tion to the introduction of any evidence under the indictment. The point thus made is fully answered by section 3151, Revised Statutes, which is as follows: “No offence committed, and no fine, penalty or forfeiture incurred, previous to the time when any statutory provision shall be repealed, shall be affected by such, repeal; but the trial and punishment of all such offences,.
The court, by its instructions given on behalf of the state, tried the case on the theory that if the owner of a tract of land, in fencing it up, leave a strip of land for the purpose of a public road, and that said strip so left had for more than ten years been continuously claimed, usedj traveled, worked, and repaired, as a public road, with the knowledge, and acquiescence of the owner and occupant of said land, then such road was a public road, for the wilful obstruction of which the obstructor could be proceeded against by indictment. The court was fully warranted in giving instructions embracing this theory of the case by the rulings of this court in the cases of State v. Walters, 69 Mo. 463" court="Mo." date_filed="1879-04-15" href="https://app.midpage.ai/document/state-v-walters-8006211?utm_source=webapp" opinion_id="8006211">69 Mo. 463, and State v. Wells, 70 Mo. 635" court="Mo." date_filed="1879-10-15" href="https://app.midpage.ai/document/state-v-wells-8006363?utm_source=webapp" opinion_id="8006363">70 Mo. 635. As the instructions asked by defendant presented a theory in direct opposition to that embraced in the instructions given for the state, they were properly refused.
Judgment affirmed,