Jolly v. State

Citations

• 19 Tex. Ct. App. 76
• 1885 Tex. Crim. App. LEXIS 164

Syllabus

<p>1. Malicious Mischief.— The erection of a gate across a public road of the first or second class constitutes a public nuisance, which any citizen has the legal right peaceably to abate. If, however, the road be of the third class, the owner of land traversed by it has the right to erect a gate across it, provided he complied with the requirements of the law in the construction of such a gate; and it would be a penal offense to wilfully and negligently leave open such a gate. But, if the road obstructed by the gate is not a public road of either class, then the leaving open of such a gate would be a violation of article 684 of the Penal Code.</p> <p>8. Same — Charge of the Court.— The defense to a prosecution for wilfully and negligently leaving open the gate to the inclosure of another was that the gate was an obstruction to a public road, and therefore a public nuisance. The charge of the court defined a public road as follows: “ A public road is one that has been laid out and opened by order of the commissioners’ court.” Held, that, in limiting the public character of a road to one that has been laid out and opened by an order of the commissioners’ court, the charge was erroneous.</p> <p>8. Same — Special Charge, to the effect that “ the character of a road may be established as public by evidence of long continued use as such, and by an order of the commissioners’ court assigning hands to work on it as a public road,” was erroneously refused, inasmuch as it announced the correct rule.</p> <p>4. Same—Practice.— The evidence, though it failed to disclose that the road obstructed in this instance was ever classified by the commissioners’ court, established its long use by the public as a public road, and its recognition as such for a series of years by the commissioners’ court. Under such circumstances, the charge of the court should have properly submitted to the jury to determine whether or not the facts proved constituted the road a public road. If the road wa