majority">HARALSON, J.

The defendant was indicted under section 5388 of the Code, for obstructing and injuring a public road, called the Chambers Section Line Road. The first count charged that defendant obstructed said road by a fence without leave of the court of county commissioners; the second, that defendant willfully obstructed said road by building a stable on the same, and third, that defendant willfully injured said road by plowing the same.

The defendant demurred to each count, assigning several grounds, and the same was overruled.

The indictment follows the statute and form of indictment, for the offense.— Code, § 5388; Form 66, p. 333. The demurrers were properly overruled.

The evidence showed without conflict, that the road referred to in the indictment was a public road, worked by the hands apportioned to it. Several witnesses testified that it was obstructed by a shed or cow stable which was built by the defendant on one of its sides. H. L. Stephens testified, that the road was in Marshall county and that he was its overseer; that a short time after he worked it, he discovered that some one had plowed it up, where it had been worked, and built a cow shed or stable on it, and defendant told him he was the man who did it. The defendant testified that he built the fence and barn in the road, and they extended, in his judgment, into the road about twelve inches.

*112On the cross-exaihinati'on of Stephens, he was asked by defendant, if Mr. Knuekols did not warn' him not. to cut out the road, that he (Knuekols) had taken an appeal. It had not been shown that defendant was the owner of the land oyer which the road ran, nor a party to any proceeding in the Commissioners’ Court, looking to the establishment of said road, nor that at any time had he appealed from any order of the court establishing this road. But, whether he had taken, an appeal or not, was irrevelant and immaterial. The defendant was indicted for obstructing a public road, and the fact that he told the road overseer that he had taken an appeal and warned him not to cut out the road, if true, shed no light on the issue being tried.

The question asked said witness by defendant, “Did you ever tender Mr. Knuekols any money in payment of hi's land over which said road runs?” was improper. So far as appears, no duty rested on'Stephens to tender him any money on account of said road. The same thing is true of a like question propounded by defendant to the witness Jackson.

John Stallings testified- that he knew where the section line ran, and that the road was built on the section line; that the stable and fence were in said road and defendant told, witness that he built them or had them built. He further testified, that he never saw the section line run, but knew where it was from the corners that were pointed out to him, from time to time. The defendant thereupon moved to exclude the statement of the witness, that “the road is on the section iine.” The court overruled the motion, and the defendant asked him: “Had Mr. Knuekols ever been paid for his land?” There was no error in the refusal to allow the question. It assumed that Knuekols owned the land, of which fact there was no proof, and, if he had owned the land, the fact of payment rested -in better evidence than that of the witness. — Code, § 2449.

The witness, Jackson, was asked by the defendant on the cross, if it was “not a fact that after Mr-. Knuekols took an appeal from the commissioners’ court to the *113circuit court, the road along the section line was abandoned, and a strip of land was purchased on the Gentry side of the section line and the road built on it?” The question was properly disallowed. If the road in ques: tion had been changed or abandoned in the manner inquired about, the records of the commissioners’ court were the best evidence of the fact. — Code, §§ 2443, 2445, 2446.

The defendant introduced the record of the proceedings of the commissioners court establishing this road. From these it no where appears that he was a party to the proceeding, or had anything to do with the establishment of tille road. It does appear, that Ada E. Knuckols was one of the owners of the land over which the road was laid out, and a party to the proceedings therefor. The defendant offered a bond purporting to be for an appeal by Ada E. Knuckols from the order of the. commissioners’ court establishing said road, to the circuit court, with the defendant and others as her sureties. The State objected on the grounds, that it was not shown that the appeal bond had any connection with the case, and the appeal was not taken within the time allowed by law for an appeal in such cases. The bond was excluded. The appeal bond shows on its face that the appeal Avas by Ada E. Knuckols alone, Avith whom it does not appear that defendant had any connection. Nor does it appear that he had any right or interest in the controvery— Creswell v. Commissioners’ Court, 24 Ala. 282. Moreover, the appeal bond was filed on the 16th of September, 1901, and the order finally establishing the road by the commissioners court, as shown on the face of the bond, was entered on the 23rd of August, 1900. The appeal Avas not taken for more than a year after it might have been taken. Such appeals are required to be taken within ten days from the date of the judgment of the commisioners’ court. — Code, § 2450. There was no error in the exclusion of said bond, nor in the refusal of the court, on the objection of the State, to allow the defendant to answer the question propounded to him by his counsel on the direct examination: “Did you take an appeal from the commissioners-’ court to the circuit court?”

*114There was no error in giving tlie charge requested by the State, nor in refusing the two requested by defendant.

Affirmed.

Citation profile

Relationships

How this case has been treated — in progress