
    (86 Tex. Cr. R. 288)
    HOWARD v. STATE.
    (No. 5535.)
    (Court of Criminal Appeals of Texas.
    Nov. 26, 1919.)
    1. Bail ©=>70 — Approval by sheriff op BON'D ON APPEAL FROM CONVICTION OP MISDEMEANOR.
    Under Code Cr. Proc. art. 918, as amended by Acts 36th Leg. (1919) p. 23, it is sufficient where the sheriff approves the bond given on appeal from conviction of misdemeanor.
    2. Criminal law ©=>1.099 (6) — Time .fob filing STATEMENT OF FACTS IN MISDEMEANOR CASE.
    Where the court which tried a prosecution for misdemeanor entered an order allowing 60 days after adjournment in which to file statement of facts,.and such statement was in fact filed within the 60 days, it will not he stricken out because filed mdre than 20 days after- adjournment, the same rule applying in regard to statements of fact and bills of exception in misdemeanor as in felony cases.
    3. Highways ©=>164(3) — Evidence showing OBSTRUCTION.
    In a prosecution for obstructing a public road, evidence held to sustain conviction.
    4. Criminal law ©=>1092(11) — Doubt of approval OF EXCEPTIONS.
    It is in serious doubt whether the court intended to approve exceptions where the exceptions and special charges are all included in the same document indorsed “refused” by the court.
    5. Criminal law ©=>800(6) — Definition of _ “willful” obstruction of public road.
    In a prosecution for obstructing a public road, the definition of “willful” by the court in his charge that by the term it was meant that defendant knew at the time of the alleged obstruction that the road was public, and that the obstruction was placed, if it was obstructed, with an evil intent, held sufficient.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Willful.]
    Appeal from Montague County Court; W. T. Russell, Judge.
    J. G. Howard was convicted of obstructing a public road, and he appeals. Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of obstructing a public road.

Tbe Assistant Attorney General moves to dismiss tbe appeal because tbe appeal bond, nowbere shows that it was approved by tbe court, and, being thus defective, did not attach the jurisdiction of this court. On page 23 of tbe Acts of tbe Thirty-Sixth Legislature will be found article 918, C. C. P., as amended. Prior to its amendment tbe convicted party in a misdemeanor was required to enter into a recognizance during tbe term of court at which tbe conviction was obtained. As amended, it does not require the defendant to enter into a recognizance during tbe term, but after giving notice of appeal be shall be permitted to enter into bond after tbe expiration of tbe term of court in an amount to be fixed by the court, it further provides that before tbe defendant shall be released on such bail bond same must be approved by tbe sheriff or tbe judge trying tbe case, or bis successor in office, and when,such bail bond has been accepted and approved tbe defendant shall be released from custody tbe same as though he entered into a recognizance during tbe term at which be was convicted.' This appeal bond was taken after tbe expiration of the term of’ court and approved only by tbe sheriff, so far as the record shows. We are of opinion it is sufficient where the sheriff approves the bond. We think so far as that phase of the motion is concerned it should be overruled.

The Assistant Attorney General also moves to strike out and not consider the statement of facts because filed more than 20 days after the adjournment of court. The court entered an order allowing 60 days after the adjournment of court in which to file the statement of facts. Such statement was in fact filed within the -60 days. Those cases cited by the Assistant Attorney General in support of this motion would sustain his contention, but in Gribble v. State, 210 S. W. 215, decided during last term of the court, those cases were overruled. The Gribble Case was followed in the case of Wales v. State, 212 S. W. 503, also decided during the last term of this court. The proposition announced in the Gribble Case is to the effect that under the stenographic act of the Legislature, discussed in that case, the rights of the accused in regard to statement of facts and bills of exception would be the same in misdemeanors as in felonies. The former decisions were based upon the idea that the statute, only allowing 20 days in cases appealed from the county court, was not repealed by the later act. This ruling seems to have been based upon the proposition that it was only in eases where there was a stenographer used that the statute authorizing 20 days would control. The Gribble Case overrules those cases, and to the mind of the writer correctly so. The writer is of opinion, and is supported by the Gribble and Wales Cases, supra, that the same rule would apply in regard to statement of facts and bills of exception in misdemeanors as in felony cases. Believing this view to be correct, the motion -of the Assistant Attorney General to disregard the statement of facts will also be overruled.

Upon the merits of the case the facts-show that appellant obstructed a public road by building a fence across it. This fence is described as being of a permanent nature and-intended to obstruct the road. Under the evidence this road was laid Out by a. jury of view appointed by the commissioners’ court of Montague county, and Mr. Willett had been appointed road overseer. He says:

“I had. the rbad opened and laid out according to instructions that I received at the time I was appointed overseer. I had the road worked by county hands and by other hands. The road was obstructed when I was overseer.”

Then follows his denial giving appellant his consent or permission to fence the road. The road extended through the-lands of appellant to Red river. Another witness .testified that he traveled along the road, and saw the-fence posts put up and wire nailed to the same- and fastened up in a very substantial way,, and saw appellant putting up this fence across the road. The sheriff testified he knew the road; that he tore the fence down; that appellant was present when he tore the fence down; that the fence was put up in a very substantial way; the posts were set in the ground and “tamped with rock.” Appellant stated he would help witness take the fence down, but he did not want to tear down his own fence. Appellant also stated to the sheriff that the fence was put up good; that the posts were well in the ground and tamped with rock, and that he put them up himself. The appellant introduced no testimony.

We are of opinion the evidence supports the verdict of the jury. There is what purports to be exceptions to the court’s charge contained in the record, and included in the same document are special charges requested by appellant but refused by the court. Whether the court intended to approve these exceptions or not is left in serious doubt. The exceptions and special charges are all included in the same document, which was indorsed “refused” by the court. The record, it occurs to us, fails to show that the court approved the exceptions, if we take his in-dorsement as the criterion. The main objection urged by appellant was to the definition-the court gave of the word “willful,” which is-in the following language:

“By the term ‘willful’ is meant that the defendant knew at the time of the alleged obstruction that said road was a public road, and that said obstruction was 'placed there, if it was-obstructed, with an evü intent.”

We are of opinion that this is a sufficient definition of the word “willful.” See Cornelison v. State, 40 Tex. Cr. R. 159, 49 S. W. 384. It seems the court here gave the identical charge that was held in the above-cited case as being a sufficient definition of “willful.”

There being no error in the record authorizing a reversal, the judgment is ordered to be [affirmed. 
      (g=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     