State v. Roanoke Railroad & Lumber Co.

Mekrimon, C. J. (after stating the facts): Accepting the evidence of the single witness for the State as true, there was a substantial variance between the charge as laid and the proof. The charge was the obstruction of the public road mentioned “ by placing in and across it certain plank ” at *862 the place specified. The proof was, in substance, that a dangerous hole in the crossing was permitted to be and continue for a week or two, occasioned by the slipping down of a plank from its place. The constituent facts charged were widely different in their substance and meaning from those proven. The indictment charged one offence, that proven was, in substance, as to the constituent fact, a distinct and different one. In such case, the Court should direct the jury to render a verdict of not guilty. We are further of opinion that no offence is sufficiently charged in the indictment. The defendant is a railroad company, and constructed its railroad across the public road specified in the indictment. This it had the right to do in such way and manner “as not to impede the passage or transportation of persons or property along the same,” restoring such road so crossed “to its former state or to such state as not unnecessarily to have impaired its usefulness.” The Code, §§ 1710,1957, ¶¶ 5, 20, 54. In constructing such crossing, it might appropriately and reasonably use plank, timber, earth, etc., to make the same such as the statute allows and intends, and as the public ease, convenience and safety require. It might lawfully use such things in forming and securing the incline on each side of the railroad track, so as to provide an easy and safe passway across it for carriages, wagons, horses, etc. It was not, therefore, unlawful per se for the defendant to use plank about the crossing in question. Hence, the indictment ought to charge appropriately the misuse or misapplication of the plank in placing it across the public road at and about the crossing in such way and manner as to constitute the offence of obstructing the public road, or that the same was allowed by the defendant to become ruinous, out of repair, and in such unlawful condition as to constitute the offence. The material facts should be charged with such fullness as to show the complete offence. *863 In this case the offence is not so charged. Indeed, no offence is sufficiently charged. How the plank was misused or misapplied at the crossing does not appear, nor is it charged that the defendant suffered it to become ruinous, out of repair and in such improper condition as to obstruct the public road. The Court ought, therefore, to have quashed the indictment before the defendant pleaded. Or failing to do that, it should, after verdict, have arrested the judgment. The counsel of the defendant in this Court insists that the judgment of the Court below should be reversed and judgment there arrested. We are of that opinion, and so direct. The Court seeing the whole record, including the indictment, should have entered such judgment as in law ought to have been rendered thereon. That it did not, is error. Although a motion in arrest of judgment was not made in the Court below, it may be made here, because this Court sees the whole record and takes notice of errors appearing in the record proper, though not regularly assigned in the Court below. It must appear from the record that, in some aspect of it, the judgment rendered is warranted. Here it does not appear that any offence is charged. The trial and verdict were immaterial and nugatory. Judgment arrested.