State v. Hamilton

Court of Criminal Appeals of Oklahoma

State v. Hamilton

1956 OK CR 62, 298 P.2d 1073, 1956 Okla. Crim. App. LEXIS 198

CourtCourt of Criminal Appeals of Oklahoma

DecidedMay 29, 1956

DocketA-12310

StatusPublished

Cited by11 cases

This text of 1956 OK CR 62 (State v. Hamilton) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hamilton, 1956 OK CR 62, 298 P.2d 1073, 1956 Okla. Crim. App. LEXIS 198 (Okla. Ct. App. 1956).

Pincite

Opinion

POWELL, Judge.

Herein the parties will be referred to as in the trial court. The State of Oklahoma charged the defendant, Georgie G. Hamilton, by. information with the offense of obstructing a public highway, in that he had fenced across a certain designated section line in Ellis County. Trial by jury was waived by the parties, and the case was tried before a special county judge, upon an agreed statement of facts. The defendant demúrred to the evidence thus submitted, and after argument the court sustained the demurrer, and discharged the defendant. Thereupon, the State excepted to the ruling of the court and gave notice in open court of its intention to appeal to this court on certain reserved questions of law. 1 Appeal has been duly perfected.

The charge was filed under 69 O.S.1951 § 592, which provides:

“Any person or persons who shall wilfully or knowingly obstruct or damage any public road by obstructing the side or cross drains or ditches thereof, or by turning water upon such road or. right-of-way, or by throwing or depositing Osage orange or other brush, trees, stumps, logs, or any refuse or debris whatsoever, in said road, or on the sides or in the ditches thereof, or by fencing across or upon the right-of-way of the same, or by planting any hedge within the lines established for such road, or by changing the location thereof, or shall obstruct said road, highway or drains in any other manner whatsoever, or any person or persons who shall wilfully or knowingly deface, damage, destroy or remove any road sign, sign board, guide sign or sign post shall be deemed guilty of a misdemeanor, and, upon conviction, *1076 shall be fined not less than five dollars nor more than two hundred dollars, or by imprisonment in the county jail for not exceeding' six months, or by both such fine and imprisonment. The road overseer of any district who finds any road obstructed as above specified shall notify the person violating the provisions of this section, verbally* or in writing, to remove such obstruction forthwith, and if such person does not remove the obstruction within ten days after being notified, he shall pay the sum of five dollars for each and every day after the tenth day, such obstruction is maintained or permitted to remain; such fine to be recovered by suit brought by the road overseer, in the name of the road district, in any court of competent jurisdiction.”

The case was defended under sections 281 and 282 of Title 69, O.S.A.1951, providing for grazing districts and making lawful the fencing of section lines therein under the provisions there enumerated. 2

The stipulation as to the facts is rather lengthy, so that the material parts will be in most part summarized.

The record discloses that the defendant and his neighbor, Charles Campbell, owned or leased 1,520 acres of contiguous lands in Ellis County, more than two-thirds of which was unsuitable for cultivation, and moré than two-thirds of which was being used for grazing purposes. Approximately four weeks prior to the filing of the information, the defendant and Campbell entered into a written agreement to form a grazing district, purportedly under the provisions of 69 O.S.A.1951 §' 281, and a copy of said agreement was filed with the Board of County Commissioners of Ellis County, and a Copy with the County Attorney of that county. . ■

It is agreed that the area in question is deep rolling and covered with shinnery and bunch grass, and that on the average approximately 30 or 40 acres of such lands are required on an animal basis to support a cow and calf, and that there are no natural surface streams or ponds and that underground water when it is found is at a depth of around 200 feet, which, the parties agree, makes the cost of wells prohibitive for small pastures.

It is further stipulated that on June 14, 1955 Charles Campbell, defendant’s neighbor, was the owner or lessee of 160 acres of grazing land in section 4, township 19 north, range 21 west of the Indian Meridian, being the southeast quarter'd said section ; and that the defendant was the owner or lessee of 1,360 acres of grazing lands in sections 3, 4, 5 and 6, in township 19 north, range 21 west, and sections 32, 33 and 34 of township 20 north, range 21 west. 3

The road herein complained of is stipulated as being a road an “indefinite” distance west of the, section lines involved, being a north-south roadway between sections 3 and 4 running through the east edge of section 4 west of the section line; that at the northern end of this road between sections 3 and 4 it continues to the north, partly on defendant’s land in section 33, and partly on the section line. The road is not used as'a mail route. There is a swinging gate at the north end of the road as it leaves defendant’s property, and there is a swinging gate at the half-section line between sections 3 and 4 on the lands of Charles Campbell just before it énters de *1077 fendant’s lands as it goes north. It is stipulated that the gates, along with the bearing and holding posts thereof, cómply in all respects with the requirements of 69 O.S.A. 1951 § 282.

It is stipulated that the. Board of County Commissioners of Ellis County on June 7, 1955 caused defendant’s cattle guards beside the swinging gates in question to be destroyed and thereupon defendant fenced up the spaces, formerly, occupied by the cattle guards. Defendant stipulated: “That defendant will permit public road designated by the County Commissioners of Ellis County, Oklahoma, to be run anywhere across the lands owned or leased by him in Ellis County. * * * Further, defendant will erect substantial swinging gates, complying in all respects with Section 282, Title 69 O.S.A., at any place said designated public road or roads intersect a fence line of the defendant.”

“That defendant has not fenced across and closed to public travel or otherwise obstructed the road running north and south between sections 33 and 34, unless the use of the swinging gates under the facts as stipulated herein constitute such.”

It is further stipulated that a rural mail-route runs along the section line between sections 4 and 5; that when defendant lost his lease on certain lands in section 4 some time previously he built a fence down the east section line of section 5 in order to separate his lands from those he no longer leased, and that defendant actually, on a; temporary basis, extended the fence to the' southeast corner of section 5 in order to reseed and practice deferred grazing; that grass had burned on part of ' said lands; that the rural mail route passing north between sections 4 and 5 is 58 miles in length and there are 18 cattle guards crossed by the road to the north on lands other than, defendant’s.

It is further stipulated:

“12. That a fence surrounds the whole of the said 1520 acres owned by the defendant and his said neighbor, Charles Campbell; but as stated the whole 1520 acres are cross-fenced as indicated in paragraphs 5 and 11 above; and the outside fence on said 1520 acres is not connected together, at the presence time and has.

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