The State offered in evidence a record of the County Court of Rockingham, at May Term, 1826, in the following words: "Richard Wall and others — Petition for road — Advertised — ordered that a writ issue to summon a jury — Issued"; and also a record of August Term, 1826, as follows: "Richard Wall and others — Petition for road — writ issued — report returned and confirmed." No petition praying the establishment of such road, nor writ nor report of any jury in the premises was offered in evidence. The records of said August Term and the February Term following showed the appointment, by the court, of overseers over the said road. The prosecutor testified that he thought, though he was not certain of the fact, that he had known the said road once worked upon by an overseer and hands, and that at another time he himself, with his own Negroes, had worked on it, though without any authority from court. That the road had been used as a public road for twenty or twenty-five years, and was so considered in the neighborhood. Another witness testified that he had worked on the road under the overseer appointed in the year 1827, but that he had never known it worked on since that time — though he lived in the neighborhood. Another witness stated that in 1827 he saw a jury, one of whom was the father of the defendant, laying off the road, and he thought the road, as marked off at that time, ran on the same track with the road now obstructed. It was further proved on the part of the State, that the defendant had said, a few years before the finding of the bill, that the road was a public road, and had been as long as he had known it.
The defendant introduced several witnesses, two of whom testified that they were born on the land through which the said road runs, and *Page 236 had known it well for twenty or twenty-five years, during which time its track had been almost entirely changed; that it never had been used or considered by the neighborhood as a public road, but only as a passway for persons on foot or horseback, except as to one part of it, over which the father of the defendant was in the practice of hauling logs to his mill; that they had never known it worked on, nor heard of its being so, and that for twenty years or more it had been almost impassable for vehicles; and one of the witnesses, a brother of the defendant, (247) stated that he had repeatedly known his father to change portions of the road as his convenience required him to change his fences — though the fence of the defendant crosses the track of said road as it ran when he first knew it. Other witnesses testified that they lived in the neighborhood of the said road; that they had known it for twenty or twenty-five years; that it never had been reputed a public road, nor worked on as such, so far as they knew or ever heard of; that they had never known it used except by persons on foot or horseback, and that during most of the period it had been almost impassable for wheel vehicles.
The defendant's counsel asked the court to charge the jury: first, that according to the proof, the road had never been established as a public road, in the manner prescribed by act of Assembly, for the reason that no petition praying for the same, nor writ, nor report of the jury had been offered in evidence; second, that if the road had been used in no other manner for twenty or twenty-five years, than as described by the defendant's witnesses, the jury were not at liberty to infer its establishment as a public road; and third, that where the time and manner of the commencement of the user of the road was shown, as in this case, to be under imperfect and irregular proceedings of the county court, the jury were not at liberty to infer its establishment from the user of twenty years.
His Honor charged the jury, that there were two modes known to the law by which public highways could be established. (1) By the mode described by act of Assembly — but that the proceedings of the county court offered in evidence here were defective and insufficient, for the reason that no petition, nor writ nor report was shown. (2) Though the proceedings of the county court were defective, that if the evidence offered in this case satisfied the jury that the road had been used by the public as a highway for the space of twenty years, they were at liberty to presume that the said road had been established as a public highway, and in that case they ought to find the defendant guilty; and his Honor declined to charge the jury that if the road had been used merely as described by the defendant's witnesses, they were not at liberty to *Page 237 presume its establishment as a public road. And his Honor further declined to charge the jury as prayed for on the third point. There was a verdict of guilty — motion for a new trial overruled — and judgment being rendered on the verdict, the defendant appealed. (248) The defendant's counsel prayed the court for special instructions to the jury in three several particulars. The first was given; and of that the defendant has no right to complain. The second was refused; and if the defendant was entitled to it in law, the refusal to give it was error, even though the general charge was of itself unexceptionable, as has been several times decided by this Court. S. v.O'Neal. 29 N.C. 251. The use of a road, as a public highway for twenty years, will authorize a jury to presume its dedication to that purpose; and the general charge of the court recognizing that principle is fully sustained by the cases of Woolard v. McCullough, 23 N.C. 432; S. v.Marble. 26 N.C. 318; S. v. Hunter, 27 N.C. 369. But the defendant's witnesses swore that it never had been used or considered in the neighborhood as a public road; that it never had been worked on as such; that its location had been several times changed by the persons over whose lands it ran, and that it had been used only by passengers on foot and horseback, and was nearly impassable for wheel vehicles. If this testimony was true, it rebutted rather than supported the presumption of the road's being a public one. Why, then, did not his Honor so charge the jury? His refusal must have been for the reason, either that the desired instruction was not supported by law, or that it was rendered unnecessary by his general charge. That it was in accordance with law, there can be no doubt; and that it was not rendered unnecessary by the general charge will be made evident by a moment's reflection. That charge, in the terms in which it was given, tended to direct the attention of the jury more to the testimony introduced by the State than to that offered by the defendant; and to leave the impression upon them that the judge thought the State entitled to their verdict. This the defendant had a right to have corrected; and if his instruction had been given, then the views of both parties would have been distinctly (249) presented to the jury, and they would have been compelled to decide between the parties, without the possibility of having been misled by the supposition that the court favored one more than the other. The refusal to give the instruction tended still further to prejudice the jury against the case of the defendant, by leading them to suppose that *Page 238 it was not sustained in fact, or was against law. This was a palpable violation of the act of 1796 (1 Rev. Stat., chap. 31, sec. 136), which forbids a judge from giving an opinion whether a fact is fully or sufficiently proved, but declares it to be his duty to state, in a full and correct manner, the facts given in evidence, and to declare and explain the law arising thereon. Hence, it is settled, that if there be no testimony sufficient to establish a fact, it is the duty of the judge to say so; but if there be any testimony tending to prove the fact, he must leave its weight to be determined by the jury, while he declares and explains its effect in law. The principles herein stated will be found decided or referred to in the following, among other cases: Reed v. Shenck,13 N.C. 415; S. v. Moses, ibid., 452; Simpson v. Blount,14 N.C. 34; McRae v. Evans, 18 N.C. 243; S. v. Scott,19 N.C. 35; Horney v. Craven, 26 N.C. 513; Bynum v. Bynum,33 N.C. 632; Hice v. Woodard, 34 N.C. 293; Avery v. Stephenson,ibid., 34; Bailey v. Pool. 35 N.C. 404.
As the defendant is entitled to a new trial on account of the refusal of the judge to give the second instruction which he prayed, we have not considered particularly the propriety of the third; but we are inclined to think that it is untenable, and that his Honor properly refused to give it.
PER CURIAM.
Judgment reversed, and venire de novo ordered.
Cited: Melvin v. Easley, 46 N.C. 389; Askew v. Wynne, 52 N.C. 24; s.v. Gilmer, 97 N.C. 431; S. v. Melton, 120 N.C. 597; Lewis v. SteamshipCo., 132 N.C. 920.
(250)