#### STATE v. JOHN PURIFY

Indictment— Obstructing Highway.

Where one was indicted for obstructing a “public highway,” ard the proof was that he obstructed a “private cartway;” Held a variance. Whether an indictment will lie for obstructing a private cartway— Quaere.

(State v. MeDaniel, S Jones, 284; Boyden v. Achenbach, 79 N. C., 539, cited and approved.)

*682Indictment for a' nuisance in obstructing a highway, tried at Fall Term, 1881, of Chaven Superior Court, before Gilmer, J.

Upon the special verdict found by the jury, His Honor held that the defendant was not guilty as charged in the bill of indictment, and the solicitor for the state appealed.

Attorney General, for the State.

No counsel for defendant.

Ruffin, J.

It is impossible to doubt the correctness of the judgment of the court below.

The charge preferred against the defendant in the indictment is the obstruction of “ a certain common and public highway leading from the dwelling house, &c., to the public road, &c.,” whereas the proof offered was, that he had obstructed “a certain private cart-way, leading from the dwelling house, &., to the public road,” &c.

Even if we should concede that an indictment would lie for obstructing a private cart-way — which according to the authorities seems more than doubtful— still it must be truly charged, and not, as in this instance, as a public highway.

A public highway is one established by public authority, and kept in order by the public, under the direction of the law ; or else it is one used generally by the public for twenty years, and over which the public authorities have exerted control, and for the reparation of which they are responsible. State v. McDaniel, 8 Jones, 284; Boyden v. Achenbach, 79 N. C., 539.

A cart-way is as distinct as possible. Indeed, it is a way established by law for a person who has - not the benefit of a public highway, and for that' reason alone. Bat. Rev., ch. 104, § 38.

Because of the variance between the allegations made in the indictment and the proof offered in support of them, the defendant was clearly entitled to an acquittal.

No error. Affirmed.