
    STATE v. CHARLES JOHNSON.
    An ordinary Rail Road is not a Public Highway within the meaning of the Revised Code, ch. 34, sec. 2, punishing with death robbery in or near a Public Highway.
    Highway Robbery, tried before Mervimon, Ji, at Fall Term, 1866, of the Superior Court of Wake.
    The prisoner was indicted for robbing one Solomon Greeson. The indictment was in two counts, one charging the offence to have been committed in, and the other near, the public highway.
    It was proved that Greeson was assaulted and robbed by three persons, while walking along.the North Carolina Rail Road, near the city of Raleigh.
    The evidence that the prisoner was one of the persons who robbed Greeson was circumstantial.
    His Honor ruled that the North Carolina Rail Road was a public highway, and charged the jury that if they were satisfied beyond a reasonable doubt, that the prisoner robbed said Solomon Greeson on or near the North Carolina Rail Road, or that he was present at the robbery, aiding and abetting, be was guilty of tbe crime charged in the bill of indictment. Defendant excepted.
    Verdict of Guilty. Judgment of death and appeal.
    
      Attorney General, for the State.
    
      -.Haywood and Badger, for the prisoner.
    1. The North Carolina Rail Road is no “ highway ” within Rev. Code, c. 34, s. 2. It is only quasi; i. e., private property may be condemned for it as in Davis v. B. B., 2 D. & B., 451; its obstruction is a common nuisance as in State v. Bives, 5 Ire., 297; for in these cases is illustrated the flexibility of the common law adapting itself to changes and improvements. But here the question is as to the flexibility of a highly penal statute. Can such a statute be extended by construction to embrace cases entirely beyond the contemplation of those who passed it? The language of our Code is copied from the English Statutes of 23 H. VIII, c. 1, s. 3, and 1 Edw. VI, c. 12, s. 10; and our railways are certainly not identical with “ highways ” as known at their enactment. For, in case of a railroad the franchise of way is in the company; the right of the public to pass is only slib modo, on trains, and as the company chooses; the company may enclose their track and to some extent obstruct it; and the soil under the way belongs to the company. In case of a highway, the right of way is in the public; they may use it at all times and under all circumstances; no one can enclose or obstruct it; and the soil belongs to the adjacent proprietors. Such are only some of the material distinctions, and we submit that it is enough for our purpose, some.
    
    2. Penal statutes are to be construed strictly. See 1 Bl., 88, and various illustrations in S. v. Knight, 2 Hay., 109; S. C. Tay., 65; Wardens, &c., v. Sneed, 1 Mur., 485; S. v. Kearney, 1 Hawks, 53; Smithwick v. Williams, 8 Ire., 268. Now there are three sorts of ways, Iter, Actus and Via. Co. Litt., 56a., Bac. Ab., Highway (A.) Any of these that is common to all the King’s subjects may be termed a highway. Ibid, Vin. Ab., Chimin Commun, A., sec. 3. “Highway” is used in two senses to denote the genus of all public ways, and again one species of them, viz.: Alta via regia, the Great Highway. Vin. Ab., Ibid, sec. 4; B. v. Saintijf, 6 Mod., 255. The English statutes above take away Benefit of clergy from robbery in or near the highway, which in these acts is held to be only the Via, although the other ways are open to all subjects, and at that the special Via above named: so that one indicted under the act of Hen. VIII., (above,) for robbery in via regia pedestri, was allowed Clergy. Hal. P. C., vol. 1, 535, and vol. 2, 349; Haw. P. C., vol. 2, p. 476. So here the proof of a robbery “ on or in the N. C. R. Road, within the county of Wake, and that said road was an ordinary rail road,” does not bring this quasi highway within the statute under which the indictment was framed.
    3. The reason for depriving highway robbery of clergy does not apply to the case of robbery like the present. To bring robbery on railways at all within that reason, the person robbed must be using the railway as a passenger in the cars. We do not admit that even this would answer. Highway robbery (insidiatio viarum) was excluded from clergy at common law previously to Statute 25, Edw. 3, Pro clero; 4 Bl., 373; 1 Chit. Cr. Law, 675; 2 Hale, 333. The Statute Pro clero gave clergy for any treasons or felonies not touching the King himself or his royal majesty.” Yet a construction prevailed after this that insidiatores viarum might be denied it. Hale & Haw., ubi supa. The reason assigned being that it was a sort of hostile act and bordered upon treason. 4 Bl., 373; 1 Ch. Cr. L., 675. Upon complaint of this to Parliament, the Stat. 4, H. IV, ch. 2, granted [it to them. The reason above grew out of the fact that the King had a right of passage for himself and for all his subjects. 
      Comyer, Chimin, (A, 2.) p. 27. Where highways are unsafe, the whole country is in peril. The policy of this security applies only to places where every citizen has a right to pass and repass at pleasure; particularly to such upon which every man is' sometimes compelled to be; and to transport articles of value; and expose such at lonely places; at the same time that the robber himself cannot be excluded from being thereupon, having the right to pass and repass as well as others, and being under the protection of the sovereign in the enjoyment of his right.
    4. None of these reasons apply to a robbery committed, as here, upon one casually standing or walking upon a railway; many of them do not apply even to passengers upon railway trains.
   Pearson, C. J.

There is error. The evidence did not prove the allegation in the indictment: that the robbing was committed “in the common and public highway of the State,” and the court erred in ruling “ that the said road is, and was at the time of such robbery, a highway.”

The benefit of Clergy is taken from the offence of robbing any person in or near any public Highway. Statutes Hen. 8, and Ed. 6, re-enacted, Rev. Stat., ch. 34, sec. 1, and also re-enacted, Rev. Code, ch. 34, sec. 2, in connection with sec. 22.

These statutes, from the earliest time, have received a uniform construction, by which it is held, that although, at the date of the passage of the original acts, there were three sorts of public highways: one called uiter,” over which the people passed on foot, another called “ actus," over which they passed on foot or on horseback, and a third called “via,” over which they passed on foot or on horseback, or in vehicles with wheels; Coke Lit 56, a, b, and although the statutes use the words, “public highway,” still they do not embrace any but the last kind: the “via, or by way of pre-eminence the higlway. 1 Hale, 535, ibid 333; 2 Hawk., 476; 4 Blackstone, 373. For it was considered that the mischief intended to be remedied existed in a special degree in regard to the “ via,” or highway of most importance ; that is, those over which all of the King’s subjects were at liberty to pass and re-pass on foot, on horseback, and in carriages; and it was resolved by the Judges that a statute so highly penal, and affecting human life, should be confined to the most important kind, and could not, by construction, be made to include the two other kinds, notwithstanding the mischief in some degree extended to them.

Such being the known construction of these statutes, at the time they were re-enacted in this State, it follows, as a matter of course, that our courts must continue them in the same manner, and confine their operation to that kind of public highway over which all of the citizens are at liberty to pass, and repass, on foot, on horseback, and in carriages and wagons.

Plankroads or turnpikes adopted by law and used for these three purposes as public highways, it would seem, come within this construction, because -the fact that the agency of individuals or of corporations is used for the purpose of constructing and keeping in repair these kind of public highways in no wise affects the principle or the policy of the statute.

But with respect to rail roads the case is different, and other considerations are involved. A rail road is a public highway, sub modo, to be used as such only for a special purpose: that of transporting passengers and freight along the road in cars.

It is not free for all the people of the State to pass and repass over, on foot, on horseback, and in carriages and wagons, and the prevention of robbery on a highway of this kind by the penalty of [death is neither within the principle nor the policy of the statute. Whether, if a robbery should be committed in a car while passing along the track, the offence would come within the statute is a question not now presented, and indeed is one not likely to be presented; for the number of passengers and persons on board takes away • all facilities and temptation to commit the offence. Ours is the case of a robbery committed on an individual who had no right to be upon the road; he was a trespasser, and, if forbidden, might have been indicted for a misdemeanor in being there, according to the provisions of the charter of the company, and it is difficult to conceive of any reason why he should be considered more under the protection of the law than if he had been walking in a field, or through the woods. Certainly there is none in respect to the individual or the place, and it is equally certain there is none in ■ respect to the public. The proposition that the offence does not come either within the principle or the ■ policy of the statute, cannot be made plainer by a more elaborate discussion.

Per Curiam. There is error, vonire de novo.  