State v. Town of Newfane

The opinion of the court was delivered by Bennett, J. — The defendants, in this case, claim that the court below should have dismissed this indictment upon the ground that one of the grand jurors, who made this presentment, was a-rateable inhabitant of Newfane ; and therefore, interested in the subject matter of it. It is a sufficient answer to this objection, to say, that it is not competent for the defendants to make it. The juror was interested in shielding the town from indictment, and if his interest operated upon the mind of this juror, it is to be presumed that its operation was altogether favorable to the town. This objection, then, [425] comes with an ill grace from the town, and cannot be entertained. It was properly overruled in the court below. It is also insisted that the indictment itself is insufficient, and the important objection arises from its uncertainty in its description of the road. The indictment alleges that the committee laid out and established the road “ from the centre of the county road passing through Williamsville, five rods eastwardly from the centre of the east abutment of the bridge across Baker’s brook, on a course east 30 degs. north; thence, in various directions through the town of Newfane, in the county of Windham to the centre of the county road leading from Fayetteville to Wardsboro.” This indictment, to say the least of it, is very loose and uncertain ; and though it rests upon a statute, which describes the offence, yet the statute is silent as to the form of the indictment. The statute, which relaxes the precision required at the common law in indictments for not repairing highways, is not applicable to the case. It would seem reasonable that the indictment should at least contain so much certainty in the description of the road, as would enable the court to issue, from the indictment itself, a commission to the agent, who might be appointed to expend the fine, specifying so particularly the location of the road upon which the fine was to be expended, that the agent might know where to work it. If this were a new question we might be led to hesitate ; but the case of the State v. Brookfield, 2 Vt. R. 548, is like the present. In that case the road is stated to begin “ about 1 1-2 rods northwardly from Simon Cotton’s house, thence running northwardly through the gulf to the road leading from Seabury’s mills to Thomas Kingsbury’s house, in Brookfield.” In that case there was as great uncertainty as in this. It did not appear where Seabury’s mills were situated, or at what point one road intersected the other, and we have no other course given, except through ¿he gtilf. This indictment, however, was held sufficient. We have a certain terminus where this road begins ; and the other terminus is not more uncertain than in the case of the State v. Brookfield. It is, at its intersection “ with the centre of the county road leading from Fayetteville to Wardsboro’.” , It is said, in argument, that, as Fayetteville was not the [426] name of a town, we cannot take judicial notice of it, and there is no averment, in the innictment of the place where it is situate. The road, however, is described as running through the town of Newfane, until it strikes the road leading ^from Fayettevile to Wadsboro’; and hence, it may be fairly concluded to be some place within the limits of Newfane, ai\d, also, the place of its intersection with that road. In the case against the town of Brookfield, the terminus is the road “ leading from Seabury’s mills to Thomas Kingsbury’s house, in Brookfiled.” We are not told in the indictment, where these mills are; and I cannot conceive it necessary. When a known and an established point is given as a terminus of a road, and its precise location becomes important, it may be ascertained, by aids extraneous to the indictment. It is said that it is not alleged in the indictment, that the county court established this road, but it is averred that the county court accepted the report of the committee. This acceptance is,ipso facto, an establishment of the road and is all the establishment which the law requires. This case is not to be distinguished from the case in the 2 Yt. R., and upon the authority of that we are led to the conclusion that there is no error in the proceedings of the county court. That court,having assessed the fine and appointed an agent to expend the same in making the road, must be left to see its sentence carried into execution.