Gilbert v. State

Nebraska Supreme Court

Gilbert v. State

111 N.W. 377, 78 Neb. 636, 1907 Neb. LEXIS 198

CourtNebraska Supreme Court

DecidedMarch 21, 1907

DocketNo. 14,737

StatusPublished

Cited by2 cases

This text of 111 N.W. 377 (Gilbert v. State) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilbert v. State, 111 N.W. 377, 78 Neb. 636, 1907 Neb. LEXIS 198 (Neb. 1907).

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Opinions

Albert, C.

The plaintiff in error ivas prosecuted and convicted on an information charging that he “in said county unlawfully and wilfully did on or about the 21st day of December, 1905, build a barbed wire fence across and in a certain plain traveled road in Republican City township in said county, to wit, the road between sections 8 and 17 of said township, without first putting np sufficient guards to prevent man or beast from running into said fence, contrary,” etc. The charge is based on section 108, ch. 78, Comp. St. 1905, which is as follows: “That from and after 1 he passage of this act it shall be unlawful for any person to build a barbed Avire fence across or in any plain traveled road or track in common use, either public or private, in this state, without first putting up sufficient guards to prevent either man or beast from running into said fence.”

One contention of the plaintiff in error is that the- information does not charge the offense denounced by the section quoted. It would seem that this contention must be sustained. In a prosecution for a statutory offense, the [637]*637information must charge and the evidence show every statutory element, of the crime. Chandler v. State, 141 Ind. 106; Conyers v. State, 50 Ga. 103, 15 Am. Rep. 686; United States v. Dickey, 1 Morris (Ia.), *412; State v. Decker, 52 Kan. 193; Kearney v. State, 48 Md. 16; Koster v. People, 8 Mich. 431. One statutory element of the offense of which the defendant was convicted is that the road obstructed was not only a plain traveled road, but also that it Avas “in common use.” It is obvious that a road may be a plain traveled road, and even on a section line, and, at the same time, not “in common use.” In that case its obstruction would not he an offense under the statute. The legislature having made the common use of the road an essential element of the offense, to sustain a conviction on an information which ignores that element Avould he an umvarranted extension of the statute by tin* court.

As the information is insufficient to support the conviction, it is recommended that the judgment of the district court be reversed and the cause remanded.

Dtjffib and Jackson, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.

Reversed.

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Albert, C.

The plaintiff in error ivas prosecuted and convicted on an information charging that he “in said county unlawfully and wilfully did on or about the 21st day of December, 1905, build a barbed wire fence across and in a certain plain traveled road in Republican City township in said county, to wit, the road between sections 8 and 17 of said township, without first putting np sufficient guards to prevent man or beast from running into said fence, contrary,” etc. The charge is based on section 108, ch. 78, Comp. St. 1905, which is as follows: “That from and after 1 he passage of this act it shall be unlawful for any person to build a barbed Avire fence across or in any plain traveled road or track in common use, either public or private, in this state, without first putting up sufficient guards to prevent either man or beast from running into said fence.”

One contention of the plaintiff in error is that the- information does not charge the offense denounced by the section quoted. It would seem that this contention must be sustained. In a prosecution for a statutory offense, the [637]*637information must charge and the evidence show every statutory element, of the crime. Chandler v. State, 141 Ind. 106; Conyers v. State, 50 Ga. 103, 15 Am. Rep. 686; United States v. Dickey, 1 Morris (Ia.), *412; State v. Decker, 52 Kan. 193; Kearney v. State, 48 Md. 16; Koster v. People, 8 Mich. 431. One statutory element of the offense of which the defendant was convicted is that the road obstructed was not only a plain traveled road, but also that it Avas “in common use.” It is obvious that a road may be a plain traveled road, and even on a section line, and, at the same time, not “in common use.” In that case its obstruction would not he an offense under the statute. The legislature having made the common use of the road an essential element of the offense, to sustain a conviction on an information which ignores that element Avould he an umvarranted extension of the statute by tin* court.

As the information is insufficient to support the conviction, it is recommended that the judgment of the district court be reversed and the cause remanded.

Dtjffib and Jackson, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded.

Reversed.

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111 N.W. 377, 78 Neb. 636, 1907 Neb. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-state-neb-1907.

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