R. B. McWhorter v. The State

R. B. McWhorter v. The State. Public boad.—In a trial for obstructing a public road, the character of the road may he established as public by evidence of long-continued use as such, and by an order of the County Court assigning hands to work on it as a public road. Appeal from Cass. Tried below before the Hon. James H. Rogers. McWhorter was indicted and convicted for obstructing a public road leading from Petty’s ferry to Monterey, in Cass county. • The evidence showed that the road had been used as a public road for about seventeen years; that parts of the road had been to a great extent abandoned, though, owing to the bad condition of a new road which had been established, the travel generally passed over the part of the road obstructed by the defendant. An order of the County Court was read, assigning hands to work the road, entered February, 1861, and it appeared that defendant had built his fence across the road. Jones & Henry, for appellant. A. J. Peeler, Assistant Attorney General, for the State. [MAJORITY — Gould, Associate Justice.] Gould, Associate Justice. We are of the opinion that a road may be shown to be public by other evidence than the production of the order of the County Court establishing it as such. While there is some obscurity in parts of the evidence, and it is apparently to some extent conflicting, we think it may well have satisfied the jury that that part of the road obstructed by appellant had long been used as a public road and had been recognized as such by an order of the County Court apportioning hands to work it. If the order of the County Court referred to the road which defendant obstructed, it is not material that the road was not described as it is in the indictment. The judgment is affirmed. Affirmed.