
    MARTIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Indictment and Information (§ 87) — Allegations — Time of Offense.
    Where the affidavit charging the obstruction of a street was made on the 14th of June and alleged that the offense was committed on that date, it was defective for not specifically alleging that it was committed before the complaint was made.
    (Ed. Note. — For other cases, see Indictment and Information, Cent.. Dig. §§ 244r-255; Dec. Dig. § 87.]
    2. Indictment and Information (§ 109*)— Obstruction of Streets — Allegations of Complaint.
    The complaint in a prosecution for violating the statute before its amendment, which prohibits the willful obstruction of a street in an incorporated • town, was defective for not alleging that the town at the time was an incorporated town.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 286-288; Dee. Dig. § 109.]
    3. Municipal Corporations (§ 700*) — Obstruction of Streets — Prosecutions—Admission of Evidence.
    In a prosecution for violating the statute prohibiting the obstruction of streets in an incorporated town, evidence that accused was advised by the mayor and others that he had a right to place the posts, which were the alleged obstruction, where he placed them after incorporation was voted out, was admissible on the question of willfulness.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 1495, 1508; Dec. Dig. § 700.]
    Appeal from Wise County Court; E. M. Allison, Judge.
    Frank Martin was convicted of obstructing a public street, and appeals.
    Reversed and remanded.
    McMurray & Gettys, of Decatur, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.
    
   DAVIDSON, J.

The complaint is attacked because it is not sufficient to charge that the offense was committed before making the complaint. It alleges the offense was committed on the 14th day of June. The affidavit is made on the 14th of June. We are of opinion that the attack on the complaint is well taken. It ought to have specifically alleged that, if the offense was committed on the 14th of June, it occurred prior to making the complaint.

There are a great many very interesting questions in the case. The complaint itself alleges that the street obstructed led by the public school building, running east and west through the town of Bridgeport, Tex. It is contended this complaint is not sufficient because it does not allege that Bridgeport at the time was an incorporated town. This proposition is well taken. The statute prohibits the willful obstruction of a street in an incorporated town. McClanahan v. State, 21 Tex. App. 429, 2 S. W. 813. This was a necessary allegation, if relying upon obstructing a street. Such was the statute' at the time. That statute has, however, been changed, but the amendment occurred subsequent to this offense, and therefore could not cover this transaction. Appellant presented this matter again in a special charge, which was refused by the court. That charge reads as follows: “The defendant asks the court to charge the jury: That if they find from the evidence beyond a reasonable doubt that defendant placed any obstruction in a passageway in the town of Bridgeport, and also find that said passageway was a street, and that Bridgeport was. unincorporated at the time said obstruction was so placed, they will find defendant not. guilty; or, if they have a reasonable doubt as to whether said passage was a public-road or street, they will find defendant not guilty.” This charge ought to have been given, and it was error on the part of the court to refuse it.

There are other interesting questions-raised on the charge and on the rejection of testimony bearing upon defendant’s willfulness, if there was any road or street obstructed. Testimony was offered but rejected going to show he was advised by the mayor and others that he had a right to place the posts where he did place them, after the incorporation was voted out. This testimony should have been admitted on the question of willfulness. So that, if there be another trial,- this evidence should be admitted. The court should also upon another trial Instruct tlae jury as contended by special instructions, which were refused, submitting the question of willfulness to the jury.

Eor the errors indicated, the judgment is reversed and the cause remanded.  