State v. . Cauble

BynuM, J. This was a criminal action against the defendant for failure to work on the public road, founded on sec. 10, ch. 104, Bat. Rev. On the trial in the Superior Court, several objections were raised by defendant. 1. That the Court had no power to amend the warrant by striking out the name of John Barger as plaintiff, and inserting the name of the State as prosecutor. The power of the Court to make any amendment in furtherance of justice is ample. C. C. P., sec. 132. The change did not affect the de-fence or take the defendant at a disadvantage, and he, therefore, has no cause of complaint. 2. That the order of the Board of Township Trustees, appointing the overseer and designating his district and hands, was inadmissible evidence. The ground of this objection was not stated and cannot be seen. The authority of the overseer was a neeessary part of the plaintiff’s case, and there could be no higher evidence of this, than the order itself. The legal effect of the order, after it was put in evidence, is another question. To bring the de *65 fendant within the operation cf this order, the State introduced a witness to prove that the defendant resided within the road' district embraced in the order, and was therefore liable to road duty. This would seem to be enough to put him upon his de-fence, and he thereupon: 3. Offered himself as a witness in his own behalf. This was-objected to by the State, and he was ruled out by the Court, properly; 1st. Because the defendant did not set forth what he proposed to prove by his own evidence, so that the Court could see that it was competent, and 2d, because this is a criminal action, and he is, by law, not competent to give evidence: in his own behalf. Bat. Rev., ch. 43, sec. 10. 4. The last objection was grounded on the special verdict;,, finding that the defendant, at the time he was notified to work the road, was a section hand and in the constant employ of the Western North Carolina Railroad Company, and his duties required him to be always there. Admit that a railroad is a public highway, yet the defendant cannot discharge himself from a public duty, by hiring himself to work another highway for wages. There was no authority in the railroad company, and no law, to compel his services, there, and he cannot escape an important and necessary public-duty by such an evasion. There was but one mode of discharging himself from working this road, and that was by applying to and obtaining from the Township Trustees an exemption from road duty, on sufficient cause shown. Bat. Rev., eh. 104, sec. 13. This the defendant failed to do, and he must take the legal consequences of his own contumacy. The recent law, making a failure to work the public roads a criminal offence, is a wise one, and if rigidly enforced, will be of great public-benefit, in a direction where it is much needed. Pee CuexaM. Judgment affirmed!