Perry v. The State. with malice either express or implied," to which charge the defendant excepted. No errors are assigned. J. N. ARRINGTON, for prisoner. JOSHUA MORSE, Attorney-General, contra. [No briefs came into the hands of the Reporter.] PETERS, J.-At the fall term of the circuit court of Bullock county, in this State, in the year 1868, Moses Perry, alias Powell, a freedman, was indicted for the murder of Alfred Perry. The cause came on to be heard and tried on the first day of December, 1868, when the following sentence and judgment was rendered against him, to-wit: Indictment for murder. "The State VS. Moses Perry, alias On this, the first day of December, 1868, came Flemming Law, the Moses Powell. J solicitor for the State, and also came the defendant in his own proper person, and pleads not guilty to the bill of indictment; thereupon came a jury of good and lawful men, to-wit: G. W. Atkinson, who, on their oaths do say, we, the jury, find the defendant guilty of murder in the second degree, and that he shall be confined at hard labor in the penitentiary of the State of Alabama, for the period of ten years. It is therefore ordered and adjudged by the court, the defendant in his own proper person being present in open court, that the defendant be confined at hard labor in the penitentiary of the State of Alabama for the period of ten years.' There was no assignment of errors. Neither from this entry, nor from any portion of the record, does it appear that the defendant was attended in court by his counsel, when sentence was pronounced upon him; nor does it appear that the defendant was asked by the court, or by the clerk in presence of the court, if he had any thing to say why judgment should not be awarded against him. failure to do this was error. The Blackstone lays it down as a rule of procedure in capital felonies, that, when "the jury have brought in their verdict Perry v. The State. in presence of the prisoner, he is either immediately, or at a convenient time soon after, asked by the court, if he has any thing to offer why judgment should not be awarded against him."-4 Blackstone's Com. 375, marg.; 1 Chitt. Cr. Law, 699, 701. And in Bishop's Criminal Procedure, it is said, "It is now indispensably necessary, even in clergyable felonies, that the defendant should be asked by the clerk, if he has anything to say why judgment "should" not be pronounced on him; and it is now material that this appear upon the record to have been done." "If he has nothing to urge in bar, he frequently addresses the court in mitigation of his conduct, and desires the intercession of the judges with king," (or the executive,) or casts himself upon their mercy. After this, nothing more is done, but the proper judge pronounces the sentence."-2 Bish. Criminal Proc. p. 610, §§ 865, 866; Revised Code, § 4314. So far as we know, this question has not, until the present term of this court, been made in this State. But it has come up in the States of Georgia, Pennsylvania and New York, and in these States, it has been settled in accordance with the judgment in the case of Crim v. The State, at the present term.-Grady v. The State, 11 Geo. Rep. 253; Hamilton v. Commonwealth, 4 Harris' Penn. R. 129; Safford v. The People, 1 Parker. Crim. Cases, N. Y. R. 474; 3 Mod. 265; 8 Mod. 26; 12 Mod. 51, 95, 312; 1 Lord Ray, 408; 1 Shann. 131; 1 Sid. 85, 6 Ent. 358; 2 Hale, 217; 3 Com. Dig. 513; 2 Hawk. P. C. 438; 3 Salk. 358; Comb. 144; Crim v. The State, January term, 1869. The unhappy class of citizens to which the defendant in this case belongs, are too often treated as persons with very slender rights to the indulgence of the court. They should, therefore, have every opportunity that the law affords, to counteract the effects of the uncontrollable prejudices against them. Such indulgence, to be heard in explanation or mitigation of the verdict, has some times shown, that the verdict was of such doubtful propriety as to secure a new trial, and a final acquittal, or a very great modification of the sentence. Perry v. The State. The judgment is also defective in failing to show that the jury were properly sworn.-4 Bl. Com., Appendix, 650, Sharswood's Edition; Revised Code, § 4092; Beal v. Campbell, 1 S. & M. 24. The first charge given by the court was in these words, to-wit: "Murder is the unlawful killing (of) one person by another, with malice either express or implied." This was excepted to by the defendant. We can not approve this definition. In describing murder, both in the form of indictment given, and in the body of the Code, it is designated as a "wilful, deliberate, malicious and premeditated killing." And the indictment is, "A. B., unlawfully and with malice aforethought, killed C. D."-Revised Code, § 3653; ib. p. 807, No. 2; 1 Bish. Criminal Law, p. 233, § 422; 1 Hale, P. C. 425; 3 Inst. 47; 4 Bl. Com. 195. It is unsafe to depart from well settled precedents. Via trita est tutissima.-1 Co. Litt. 11a. ; 1 Bl. Com. 68, Sharswood's; 4 M. & S. 168; 2 Kent. 553. It is not necessary to examine the other questions raised upon the record, as the foregoing opinion disposes of the case. The judgment of the court below is therefore reversed, and the cause remanded for a new trial, and the defendant will be held in custody until discharged by due course of law. SULTZNER vs. THE STATE. [INDICTMENT FOR OBSTRUCTING PUBLIC ROAD.] 1. Public road; establishment of, what not indispensable to.—An act of the commissioners court is not indispensable to the establishment of a public road. It may be dedicated to the public use by the owners of the soil. 2. Charge to jury; what erroneous, when evidence is only circumstantial.—▲ charge to the jury that the evidence, if true, would authorize them to find that a certain road had been dedicated to the public use, and could not be lawfully obstructed by any one, under claim of title to land, is erroneous, when the proof of dedication is only circumstantial. Sultzner v. The State. APPEAL from City Court of Mobile. Tried before Hon. H. CHAMBERLAIN. The appellant, Frederick Sultzner, was indicted, tried and convicted, in the city court of Mobile, for obstructing. a public road in Mobile county. The opinion fully sets out the facts and errors assigned. GEORGE N. STEWART, for appellant.-The question to be decided in this case is whether a certain space, which had been open and used as a passway, and had been closed by the owner of the land, was or was. not a public road or highway under the laws of the State. Sultzner was indicted for closing it, which he claimed he had the right to do; but the court decided that he was subject to the indictment. The case is important only to him in regard to the question whether or not he is bound. to open it again and leave it open. It was not pretended that this extension, north of what was called Houston street, was ever located, marked, adopted or established by any public authority, either of the State or of the county, nor that it was recognized or recorded as a public road, or ever worked on by any overseer of roads or public agent, nor that it appeared on any record. The court ruled that this lane or passway was a public road, on evidence that the owners of the land had opened it, fenced both sides of it, and allowed it to be used by all persons who chose to do so for many years back; some witnesses say as far back as 1845. This the court, it appears, considered as sufficient evidence of dedication. This evidence would not, it seems, be sufficient proof of dedication. To say that "the owners of the land had opened it," would hardly be sufficient, when even the names. of the parties, who were considered in the judgment of the witness to be owners, were not disclosed. The right of such parties so loosely called owners, when it is notorious that very recently all this land was public land of the United States, would be required to be shewn. Even under the law of dedication, the proof would be insufficient. The court will observe that the street, called Houston Sultzner v. The State. street, extended southwardly from Government street, and whether that was a public road or not does not appear, nor is it necessary to inquire into its character. The contest is as to an extension north of Government street, which led but a short distance, and led into no other road or street, but led to a pond on a tract of unenclosed land in the woods. It was not, therefore, a thoroughfare, but a mere private lane, from which no one could pass from the open north end without trespassing on land of some individual. The appellant, bowever, supposes it to be entirely useless to inquire into the law of dedication, as the case must turn on the statute law of the State, which has very clearly defined what is a public road, and laid down the policy of the State in this respect. We will notice, of course, that although these ways are called streets, they are outside of the city limits, and the term road is more proper, as the law of roads must govern. The indictment is for stopping a public road. What is a public road in this State? We deny that any one can, of his own will, establish a public road when and where he will, crooked or straight, leading somewhere or to no place, and thus dedicate land to such purpose, and prevent its use for other purposes. The public have an interest in this, and cannot allow lands to be cut up in every direction, in places unsuitable, because it may subserve the interests of one or more particular person. This would be too inconvenient, and would lead to abuse. The policy of the law has been fixed, from the very period of the formation of the State, that when a public road is proposed to be located, the location must be examined and made by commissioners lawfully appointed-the report made and approved by the court entrusted with that subject. The law has fixed the proper width of such roads, according to the class or grade deemed proper. The road, when established, must be opened at public expense and kept up at public expense, and it becomes a public charge for opening, repairs, bridges, &c., and there follow penalties for the breach of those obligations, and |