
    CHARLESTON.
    State v. Massie.
    Submitted April 22, 1913.
    Decided May 6, 1913.
    1. Highways — Obstruction—Criminal Prosecution — Indictment.
    An indictment, under section 1515a80, Code Suppl. 1909, for obstructing a public road, wbicb charges that defendant “did knowingly, wilfully and unlawfully obstruct a certain road and pass way, to-wit, the road and pass way leading from the land of S. A. Parker, in .Jumping Branch District, adjoining the said W. J. Massie, over the lands of said Massie, where he now resides, in said district, to the public county road, leading from Jumping Branch to Mat Top, by then and there unlawfully locking a gate over and across said road and pass way and continuing the same from said time hitherto, in consequence of said unlawfully locking of said gate by -the defendant, W. J. Massie, said road and pass way was rendered impassable for all the time aforesaid, said road and pass way being lawfully owned by and used by said A. S. Parker, at the time aforesaid, against the peace and dignity of the State,” omitting the words, “and to which road the public has the right of or is not denied the use,” employed in section 1515al, defining a public road, is bad on demurrer, the road so described being a private road not covered by the statute, (p. 445).
    2. Indictment and Information — Language of Statute — Descriptive ~Words — Surplusage.
    Though as a general rule an indictment for a statutory offense is good if the offense be charged in the language of the statute, and the indictment in this case would have been good, if it had been confined to the language of said section 1515a80, nevertheless, as the prosecutor undertook to include therein descriptive matter showing the road alleged to have been obstructed to be a private and not a public road, thereby effectively negativing the offense meant to be covered by the statute, and showing the prosecution not maintainable, the descriptive language cannot be rejected as surplusage on demurrer, and the indictment should be quashed, (p. 446).
    Error to Circuit Court, Summers County.
    "W. J. Massie was convicted of unlawfully obstructing a road, and he brings error.
    
      Reversed and Entered Here.
    
    
      
      R. F. Dunlap, for plaintiff in error.
    
      A. A. Lilly, Attorney General, for the State.
   Milled, Judge :

The indictment charges that defendant on the 15th day of February, 1911, in the County of Summers, "did knowingly, wilfully and unlawfully obstruct a certain road and pass way, to-wit, the road and pass way leading from the land of S. A. Parker, in Jumping Branch District, adjoining the said W. J. Massie, over the lands of said Massie, where he now resides, in said district, to the public county road, leading from Jumping •Branch to Flat Top, by then and there unlawfully locking a gate over and across said road and pass way and continuing the same from said time hitherto, in consequence of said unlawfully locking of said gate by the defendant, W. J. Massie, said road and pass way was rendered impassable for all the time aforesaid, said road and pass way being lawfully owned by and used by said A. S. Parker, at the time aforesaid, against the peace and dignity of the State.” The sole question presented is, does the indictment 'charge an offense under the statute, or should the demurrer or motion to quash have been sustained?

Prior to chapter 52, Acts 1909, sections 1515a1 and 1515a80, Code Suppl. 1909, we had held, in State v. Dry Fork R. R. Co., 50 W. Va. 235, and State v. C. & O. R. R. Co., 24 W. Va. 809, that “to sustain an indictment for obstructing a public road, it must be shown that the road is a public one, not merely a private road.” Section 1515a80, on which the indictment in this case was found, provides: “Any person who shall * * * obstruct or injure any road * * * shall be guilty of a misdemeanor and upon conviction be fined not less than ten nor more than fifty dollars.” Section 1515al, defines public road as follows: “A public road, within the meaning of this chapter, includes any road leading from any other public road over one or more person’s land to another .person’s* land and which has been established for the convenience of one or more residents, or land owners, or persons, or corporation owning or occupying or desiring to use or occupy lands which cannot be reached by any other public road and to which road the public lias the right of or is not denied the use.”

It is to be observed of course that section 1515a80, does not use the word “public road”; neither did section 45, chapter 43, Code 1899, involved in State v. Dry Fork R. R. Co., supra. Nevertheless, that ease and prior cases said the road intended was a public road. Moreover, section 1515al, uses the words, “which cannot be reached by any other public road,” implying that the road intended to be protected must itself be a public road.

But the question here is does the indictment describe a public road within the meaning of said section 1515al F We think not. The road there described is charged to be lawfully owned and used by A. S. Parker, the prosecuting witness, and it is not charged, in the language of the statute or in equivalent words, to be a road “to which * * * the public has the right of or is not denied the use.” The road described is plainly a private road. If, as the indictment alleges it is lawfully owned and used by Parker, presumably it is not a road which the public had the “right of or is not denied the use.”

It is argued, however, and as the cases cited hold, that when an indictment for a statutory offense follows the language of the statute it is generally good. Johnson v. Com., 24 Grat. 555; Helfrick v. Com., 29 Grat. 844; State v. Jones, 53 W. Va. 613; Smith v. Com., 85 Va. 924. And so in this case, if the public prosecutor had confined himself to the language of section 1515a80, charging defendant simply with obstructing a road, sufficiently locating it for the purposes of identification, that under the authorities would have been sufficient, and proof that the road was of the kind and description covered by section 1515a1, would have been admissible. State v. Dry Fork R. R. Co., supra; State v. C. & O. R. R. Co., supra. The word “road” as used in section 45, chapter 43, of the Code, in force at the time of those decisions was held to mean public road, and not to apply to a private road but to public roads only, and that the proof upon the trial must be that the road obstructed was in fact a public road.

But it is said the court may properly treat the additional words of description as surplusage, and as the evidence is not brought up, we must assume the proof sustained the indictment. This is a correct proposition if the words may properly be treated as surplusage. State v. Hall, 26 W. Va. 236; State v. Pendergast, 20 W. Va. 672; Boyle v. Com., 14 Grat. 674, Anno. Mon. Note, 630.

But what words or matter of an indictment may be properly treated as surplusage In State v. Hall, the indictment, otherwise good, was held not to be’ vitiated, because its conclusion contained surplus matter not necessary to be proved. State v. Pendergast is no't much in point, though cited for the proposition in State v. Hall. The point presented here is rather a nice one, but nevertheless vital, and should have proper consideration. Joyce on Indict., section 263, says: "It is a general rule that an indictment will not be vitiated by matter which is mere surplusage and that such matter need not be proved.” But in section 267 he says: "The principle of law which permits unnecessary and harmless allegations in an indictment to bo disregarded as surplusage, does not authorize the court to garble the indictment, regardless of its general tenor and scope, so as to entirely change the meaning. And while immaterial averments may be rejected, there cannot be a rejection as sur-plusage of an averment which is descriptive of the identity of that which is legally essential to the claim or charge and this includes those allegations which operate by way of description or limitation on that which is material.” See, also, same book, section 421. Mr. Bishop, 2 Bishop’s New Cr. Pro., section 482, says: “Unnecessary matter, of a sort or so averred as to negative the offence meant, or otherwise to show the prosecution not maintainable, cannot be rejected as surplusage.” In 6 Com. Dig. (Ed. 1825), chapter 29, page 61, it is said: "Surplusage does not hurt.” "Yet, if a man, by the allegation of a thing not necessary, shows that he had no cause of action, this, though surplusage, shall hurt; as, in assize, if the plaintiff makes a title, which he need not, and the title is not good, the whole shall abate.” See, also, other illustrations there given. In Com. v. Atwood, 11 Mass. 92, we find this: "We cannot reject as surplusage, what may have been the ground of the conviction.” In State v. Copp, 15 N. H. 212, it is held, that a descriptive averment must be laid as proved, and as applying to the case then before the court, it is said: "In an indictment for resisting a deputy sheriff in the discharge of his duty, an averment that the sheriff was legally appointed and duly qualified’, .is descriptive, and must be proved.” Again in State v. Canney, 19 Id. 135; the indictment alleged that the prisoner “broke and entered the store of one Merrill” and certain goods “in the' shop aforesaid, then and there being, then and there in the shop aforesaid, feloniously did steal, take and carry away.” It was hold that the words “store” and “shop,” as in section 9 of chapter 215, Revised Statutes, were not synonymous, that the word #“shop” being descriptive of the place where the larceny was committed, could hot be rejected as surplusage, and that the demurrer was well taken. In Lewis v. State, 113 Ind. 59, the indictment was under section 1750, R. S. 1881, for the larceny of money. The court held, that in such an indictment it was only necessary to describe the money stolen simply as money, but that if a particular description was given, it must be proved substantially as charged, or a verdict of conviction could not be sustained. In Fulford v. Georgia, 50 Ga. 593, the court considered the question, “'when do averments which might have been omitted become material — or, at least, so enter into the indictment as framed that they cannot be stricken or rejected as surplusage?” The court answered the question in part, as follows: “Starkie on Evidence, volume 3, page 1539, says it is a most general rule that no allegation which is descriptive of the identity of that ivhich is legally essential to the claim or charge, can ever be rejected; and on page 1542, same volumes, makes it- more specific by restating the rule thus: 'The position that descriptive averments cannot be rejected, extends to all allegations which operate by way of description or limitar tion of -that which is material/ Bishop says: Tf the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. And where there is a necessary allegation which cannot be rejected, yet the pleader makes it unnecessarily minute in the way of description, the proof must satisfy the description as well as the main part, since the one is essential to the identity of the other/ 1 Bishop’s C. P., secs. 234, 235. If the prosecutor state the offense with unnecessary particularity, he will be bound by that statement, and must prove it as laid: United States v. Brown, 3 McLean R. 233; Rex v. Dawlin, 5 T. R. 311.” The principles of these authorities are covered in the text in 22 Cyc. 370, with citation of other decisions in note.

The principles laid down in the text books and court decisions referred to we think render tbe indictment in this case bad on demurrer, and in our opinion the demurrer and motion to quash should have been sustained. It may be said that the evidence showed the road to be a public road within the definition given in the statute; but assume that it did, was it admissible under the indictment, which clearly described a private road; was there not a fatal variance? We think so. Defendant was entitled on his trial to stand on the indictment and the offense charged as laid. Having charged the obstruction of a private way or road clearly the State was not entitled to prove the obstruction of a, public road. The record in this case strongly evinces, what is probably the fact, that the controversy involved was one between neighbors over a purely private way or road, in which the public had no interest. Such cases have no place in the criminal courts.

We are of opinion for the reasons given to reverse the judgment and to enter such judgment here as we think the circuit court should have entered, quashing the indictment and discharging the prisoner from further prosecution.

Reversed and Entered Here.  