
    No. 5180.
    Dan Murphy v. The State.
    Obstructing Public Road—Pact Case.—The gravamen of the offense of obstructing a public road is that the act was willfully done by the accused. See the opinion and the statement of the case for the effect and substance of evidence held insufficient to support a conviction for ■ ■willfully obstructing a public road, inasmuch as the evidence leaves the true location or route of the road in doubt and uncertainty.
    Appeal from the County Court of Williamson. Tried below before the Hon. W. M. Key, County Judge.
    This conviction was for the willful obstruction of a public road, and the penalty assessed by the jury was a fine of twenty-five dollars.
    The evidence in this case disclosed that the road alleged to have been obstructed was located in 1881; that it ran over an open, unfenced prairie country, and that the road bed, as the country became populated and fenced, shifted according to the fancy or convenience of the traveling public. It was shown that, when the defendant built his fence, the road nearly divided his land in halves, having at different periods traversed it at different angles. Defendant sought information from neighbors, when he built his fence, as to whether the road was a public or private road, and was informed by more than one that it was not a public road. In short, the evidence fails to show that the defendant knew the meanderings of the road, or that he knew it to be a public road, when he built his fence across it.
    
      Cochran & Parker, for the appellant.
    
      W. L. Davidson, Assistant Attorney General, for the State.
   Hurt, Judge.

Appellant was convicted for unlawfully and willfully obstructing a public road.

After proving that the road obstructed was legally established, etc., the State, to sustain the charge that appellant was guilty of willfully obstructing the same, introduced several witnesses to show that appellant obstructed the road by building a new fence across the same. But it was also shown that the said road had no definitely settled route, the line of travel varying over a breadth of several hundred yards, rendering it reasonable that appellant was mistaken as to its true location.

After a careful examination of the statement of facts, we are left in doubt as to the location of the road. Without noticing all the questions presented in the able brief of appellant’s counsel, we hold that the conviction should not stand; for the reason that, if appellant did obstruct the road as charged, it does not appear from the record that it was “willfully” done.

Opinion delivered May 7, 1887.

The judgment is reversed and the cause remanded.

Beversed and remanded.  