Opinion
8 Div. 707.
June 30, 1938.
Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.
John D. Currier was convicted of obstructing a public road, and he appeals.
Affirmed.
The judgment entry recites:
"* * * Comes the State by its solicitor and come also the defendant in person and by attorney, and the defendant being duly and legally arraigned on said indictment says for his plea thereto that he is not guilty. There being no jury demanded in this case the court proceeds to try it without a jury and the evidence being submitted to and duly considered by the court it is ordered and adjudged by the court that the defendant is guilty as charged in the indictment and that the State of Alabama for the use of Marshall County have judgment and recover of the defendant the sum of $.01 the fine assessed against the defendant together with the cost of this prosecution for which let execution issue."
J. A. Lusk Son, of Guntersville, for appellant.
Motion to quash the indictment should have been sustained. 1 Mayfield's Dig. 430; Agee v. State, 117 Ala. 169, 23 So. 486. There was no valid establishment of the purported road. Woolsey v. Tompkins, 23 Wend., N.Y., 324, 325; 25 Cent.Dig. 1406, §§ 159(k) (m), 160; People v. Diver, 19 Hun., N.Y., 263; Elliott on Strs. Rds. (2d. Ed.) 368, § 357; Commissioners' Court v. Bowie, 34 Ala. 461; 29 C.J. 444; 15 Cyc. 887; Keenan v. Commissioners' Court, 26 Ala. 568. It is necessary to a judgment that there be a finding of facts shown by the record. McCarley v. White, 154 Ala. 295, 45 So. 155; Bryant v. Central Foundry Co., 217 Ala. 332, 116 So. 345; Sloss-S. S. I. Co. v. Keefe, 216 Ala. 379, 113 So. 400; Brock v. Louisville N. R. Co., 114 Ala. 431, 21 So. 994; 64 C.J. 1189.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
Where it appears that witnesses were examined by the grand jury, or the jury had before it legal documentary evidence, no inquiry into the sufficiency of the evidence upon which the indictment was returned may be indulged on a motion to quash the indictment. 16 Alabama and Southern Digest, Indictment and Information, p. 102, 137(4); Lee v. State, 25 Ala. App. 488, 150 So. 167; Id., 227 Ala. 334, 150 So. 169. But the record does not disclose any ruling on motion to quash, and same is not presented for review. Holt v. State, 26 Ala. App. 223, 157 So. 449; Id., 229 Ala. 368, 157 So. 452. The judgment entry shows an adjudication of guilt of defendant and sentence by the court; this is sufficient. Whitman v. State, 19 Ala. App. 526, 98 So. 695; 8 Alabama and Southern Digest, Criminal Law, p. 639, 995. The road was legally established. 14 Alabama Southern Digest, Highways, p. 478, 18-68. But the evidence shows the road was used by the public for more than twenty years, was recognized by the county authorities as a public road, and was worked as such. There was no evidence of permissive use. Hence, there was a presumption of the existence of all other elements and conditions necessary to create a highway by prescription. Carter v. Walker, 186 Ala. 140, 65 So. 170; Central of Ga. R. Co. v. Faulkner, 217 Ala. 82, 114 So. 686; Card v. Cunningham, 199 Ala. 222, 74 So. 335; Sharp v. State, 25 Ala. App. 173, 142 So. 683.
Appellant was convicted of the offense denounced by Code 1928, Sec. 1397 (145) — obstructing public road.
We do not find that the record discloses any ruling on appellant's motion to quash the indictment — hence there is nothing for us to consider in that regard. Holt v. State, 26 Ala. App. 233, 157 So. 449. We might observe, however, that where, as here, it appears that "witnesses appeared before the grand jury, all of whom were duly sworn, and gave evidence in this particular investigation which resulted in the finding [of the indictment]," no inquiry "into the sufficiency of the evidence upon which the indictment was returned may be indulged on a motion to quash the indictment." Lee v. State, 25 Ala. App. 488, 150 So. 167, 168.
The cause was tried before the court, sitting without a jury. We find no fault with the judgment entry. The same shows an adjudication of guilt by the court; and a sentence of defendant (appellant). That seems to be all that is required. Whitman v. State, 19 Ala. App. 526, 98 So. 695.
There seems no dispute but that appellant obstructed — as that term is described in the Code Section cited above — the road which was involved.
The only real question in the case was as to whether or not the said road was a "public one."
If indeed the proceeding by which the Commissioner's Court of Marshall County undertook in 1912 to establish the road as a public road was abortive, or ineffective, for the reasons argued here by appellant's able counsel, said proceeding did, surely, as we read the record, serve to identify the road which was continuously, and without interruption, used by the public, from that date to the date of its obstruction by appellant, as a public road.
The evidence showing, as it does, that the road in question was used by the public for more than twenty years; that it was recognized by the county authorities as a public road; and that same was worked as a public road; and nothing appearing to indicate that such use of the road was in any sense permissive by the adjacent landowners; it will be presumed that it is a public road. Central of Georgia Ry. Co. v. Faulkner, 217 Ala. 82, 114 So. 686.
So we are of the opinion the judgment appealed from should be affirmed.
And it is so ordered.
Affirmed.