#### STATE v. WOLFE.

Jurisdiction — Court op Generad Sessions — Magistrate Court— Criminad Law — Obstructing Pubdic Road — Misdemeanor.—The Indictment here for obstructing a public road was not drawn under Criminal Code, 365, and under the Constitution of 1895, the Court of General Sessions has concurrent jurisdiction with magistrate court to try this and all other cases of which the magistrate court is not given *exclusive*jurisdiction.

Before Buchanan, J., Orangeburg, September, 1900.

Reversed.

Indictment for obstructing public road against William W. Wolfe. From order remanding case to magistrate court because Court of General Sessions was without jurisdiction, State appeals.

*Solicitor P. T. Hildebrand*and *Adam H. Moss,*for appellant,

cites: *Sec. 365, Crim. Code, applies to highways and not public roads:*2 Strob., 16, 60; 11 S. C., 360; 2 Hill, 387; 1 McM., 47; 2oRich., 619; 7 Rich., 392. *Indictment was not framed under sec. 363, and should have been treated as one at common law:*11 S. C., 360; 15 S. C., 387; 59 S. C., 225. *Indictment will lie at common law for obstructing neighborhood road:*2 Strob., 60; 11 S. C., 360; 39 S. C., 23; 54 S. C., 294; 49 S. C., 130. *As to jurisdiction:*Con. 1895, art. V., sec. 18.

*Messrs. Glaze & Herbeft,*contra,

cite: *Indictment charges statutory offense:*Crim. Code, 55; 'Con., art. IV., sec. 31; 10 Ency., 1 ed., 519; 11 S. C., 366; 10 Ency. P. & P., 443, 444. *Court of General Sessions has no jurisdiction here:*Grim. Code, 365; chap. 22, Gen. Stat.; Gen. Stat., 1075. *Gen. Stat. have force of a statute:*20 S. C., 201; 19 S. C., 117.

July 1, 1901.

The opinion of the Court was delivered by

Mr. Justice Gary.

The appellant was indicted for wilfully, maliciously and unlawfully obstructing and closing the public road which connects two highways, by building, *26erecting and maintaining a house or structure over said public road which, it was alleged, has been used continuously and uninterruptedly by the public for more than twenty years last past. After introducing testimony for the defense, the defendant’s counsel moved to withdraw the case from the jury and send it to the magistrate’s court, because of lack of jurisdiction under the statute in the Court of General Sessions. In acting upon the motion, his Honor, the presiding Judge, said: “After the State had rested in this case, and after some evidence for the defendant had been introduced, and after the statement of Dr. Keller had been read to the jury, upon the convening of the Court after evening recess, a motion to withdraw the case was made by counsel for the defense upon the ground that -sec. 365 provides for the trial of this character of offenses by the court of magistrates, the new Constitution of 1895 having altered the jurisdiction from that formerly entertained by it, in that it provided that certain cases should be concurrently entertained by the Court of General Sessions and by the court below. In looking at this exception, we find that the section providing for the punishment for obstruction of a highway is not included, from which the Court concludes that it was the purpose of the framers of the Constitution that this character of offenses should not be tried, or jurisdiction concurrently entertained by this Court with that of the magistrates. The motion, therefore, to withdraw, made by counsel for the defense, as above indicated, the Court thinks should be granted, and for the reasons mentioned above.” The presiding Judge granted an order referring the case to the committing magistrate, whereupon the State appealed.

•Sec. 18, art. V., of the Constitution is as follows: “The Court of General Sessions shall have jurisdiction in all criminal cases, except those cases in which exclusive jurisdiction shall be given to inferior courts, and in these it shall have appellate jurisdiction. It shall also have concurrent jurisdiction with, as well as appellate jurisdiction from, the inferior *27courts in all cases of riot, assault and battery and larceny” * * * Sec. 365 of the Criminal Code is as follows: “If any person shall cause any obstruction to be placed in any part of the said highway, or on any bridge or causeway thereof, so as to obstruct or render dangerous or difficult the passage of carriages or other traveling thereon, and shall not immediately remove the same when required, he shall be deemed guilty of a nuisance, and on conviction thereof before a trial justice shall be fined in a sum not exceeding $10 nor less than $2, and shall be further liable for the expenses of removing the said nuisance.” We quote w-ith approval the following language of Mr. 'Chief Justice Mclver, in his dissenting opinion in the case of *State*v. *Harden,*11 S. C., at pages 373-4: “Again, I do not think the indictment can be regarded as framed under the statute, but that the words ‘contrary to the form of statute’ should be rejected as surplusage, and the indictment be regarded as one at common law, as in Sartor’s case. It is a well established rule of criminal pleading, that an indictment for an offense created by statute must follow the words of the statute; and, if it does not, it cannot be sustained except by the rejection of the words *contra formam statuti,*and treating it as an indictment at common law; which may be done in those cases where the offens-e existed at common law, and has not been abrogated by any statute, as in this case now under consideration. The statute, under which it is suggested that this indictment is framed, is sec. 16, of chap. XLJV., of General Statutes, p. 267, taken from sec. 2 of the acts of 1824; 9 Stat., 545. But the indictment cannot be regarded as framed under that section, for it omits one of the material ingredients of the offense there described. Under that section, the mere placing an obstruction ini a public highway does not constitute the offense, but it consists in not *immediately removing such obstruction when required.*Hence, to sustain an indictment under this section, it requires not only an allegation that defendant placed an obstruction in the public highway, but also that he failed and refused to *28*'immediately remove the same when required;’*and this latter allegation is not contained in the indictment in this case. This section was doubtless intended to prevent the *temporary*obstruction of public highways by the stopping of carts, wagons or other vehicles in such highways, and refusing or neglecting to remove such impediments to travel when required.” See, also, *State*v. *Switzer,*59 S. C., 225. For the foregoing reasons, it is apparent that the indictment was not framed under sec. 365 of the Criminal 'Code, and the punishment therein prescribed can have no effect in determining the question of jurisdiction.

The presiding Judge was of the opinion, it seems, that the Court of General Sessions did not have jurisdiction because the offense charged in the indictment was not mentioned in $ec. 18, art. V., of the Constitution, wherein are enumerated the cases in which the Court of General Sessions and magistrates shall have concurrent jurisdiction. Sec. 21, art. V., of the Constitution provides that magistrates shall have exclusive jurisdiction in such criminal cases as the General Assembly may prescribe. Such jurisdiction not to extend -to cases where the punishment exceeds a fine of $100, or imprisonment for thirty days. The foregoing sections of the Constitution show that the Court of General Sessions has concurrent jurisdiction in all cases except those in which the General Assembly may prescribe *exclusive*jurisdiction in cases cognizable before magistrates, or in which *exclusive*jurisdiction shall be given to other inferior courts; also, that the Court of General Sessions cannot be deprived of concurrent jurisdiction by the General Assembly in any case of riot, assault and battery or larceny. His Honor was, therefore, in error in his construction of the foregoing section of the Constitution.

There is still another reason why the order of the Circuit Court should be reversed. The case of *State*v. *Cooler,*30 S. C., 105, decides that under the Constitution of 1868, when a trial justice had jurisdiction of a criminal case, such jurisdiction was exclusive. The provisions of the present Con*29stitution are, however, quite different from those of the Constitution of 1868. Under the Constitution of 1895, it is necessary for the General Assembly to manifest an intention to confer *exclusive*jurisdiction on inferior courts, and this intention is not shown by simply giving jurisdiction to the inferior court. Any other construction would render meaningless the word “exclusive,” in sec. 18, art. V., of the Constitution. Furthermore, the words of sec. 21, providing that magistrates shall have exclusive jurisdiction in such criminal cases as the General Assembly may prescribe; such jurisdiction not to extend to cases where the punishment exceeds afine of $100 or imprisonment for thirty days, show that it was necessary for the General Assembly to do more than prescribe the punishment not exceeding a fine of $100 or imprisonment for thirty days, in order to confer *exclusive*jurisdiction on magistrates. There is no statute manifesting such intention.

It is the judgment of this Court, that the order of the Circuit Court be reversed.