
    Wholford v. The Commonwealth.
    (Absent Douglass, Gholson and Taliaferro, J’s.)
    1847. December Term.
    
    On the trial of an indictment for obstructing the public road, it is no reason for a new trial on the ground of surprise, that the defendant was mistaken as to the point where the obstruction was charged to he; and so was not prepared to defend himself.
    
      Michael Wholford was indicted in the Circuit Court of Wythe county, for obstructing a public road of the county, “by erecting a fence in and upon said road, whereby the same was obstructed, so that the citizens of the Commonwealth were hindered and prevented from passing and repassing in and along the said public road with their horses, carriages, &c. as they were wont and accustomed to do,” &c.
    On the trial of the case the jury found the defendant guilty, and assessed his fine at five dollars; and he thereupon moved the Court for a new trial, on the ground of surprise, and because the verdict was contrary to evidence. The ground of surprise was that he had been informed, and believed, that the obstruction in the road referred to by the grand jury, was at a particular point, and that he went into the trial prepared as to that point ; but upon the trial the obstruction was located at another point which he could not anticipate, and therefore was not prepared to shew, as he could have shewn, that the charge was unfounded in fact. The other ground involved a mere question of fact.
    The Court overruled the motion for a new trial, and the defendant excepted; and he then moved in arrest of judgment:
    1st. Because the indictment is not upon its face a prosecution as for a nuisance at common law; and there is no statute having validity in the county of Wythe authorizing the proceeding set forth in the indictment.
    
      2d. Because the indictment is framed for a violation of the general road law, passed 3d of March 1835, which law was dispensed with by the County Court of Wythe, in pursuance of an act of the General Assembly passed 30th of March 1837.
    3d. Because there is no provision of the general road law concerning roads and public landings, of 1819, or the subsequent laws amendatory of said law of 1819, passed prior to the 3d of March 1835, which authorizes the proceedings set forth in said indictment.
    The Court overruled the motion in arrest of judgment, and entered up a judgment on the verdict; whereupon, the defendant applied to this Court for a writ of error.
   By the Court.

The writ of error is refused.  