Lequat v. People

Opinion by Mr. Justice Trumbull : The indictment charges the plaintiff in error with neglect of duty, as a supervisor, in failing to open a new road, and to put up guide boards at the crossings of the public roads in his road districtbut does not allege that the labor of the persons bound to work on said new road, was sufficient to enable him to open it; or that he neglected to open it, so far as such labor would enable him to do so; neither does it state at what particular crossing he failed to put up guide boards, or even that there were any crossings of public roads in his road district. A motion to quash the indictment was overruled by the Court below, and that decision is now assigned for error. The indictment improperly attempts to charge the defendant with two distinct breaches of duty in the same count, instead of making two counts, as would have been the proper course : however, neither of said breaches is sufficient as stated. By the 20th sec. chapter 93, R. S., it is made the duty of supervisors, through whose road districts new roads are located, “ to make such roads within their respective districts, and keep the same in repair, so far as the labor of persons bound to work on said roads shall enable him.” The supervisor is not required, at all events, to open and keep in repair the new road, but only to do this, so far as the labor under his control would enable him to do so. The exception is contained in the same clause which imposes the duty, and should, therefore, have been negatived in the indictment. The rule is, if there be any exception in the same clause of the act which creates the offence, the indictment must show, affirmatively, that the defendant does not come within the exception; but if the exception or proviso be in a subsequent clause or statute, or if in the same section, and not incorporated with the enaeting clause, by any words of reference, it is in that case matter of defence, and need not be negatived in the pleading. Archbold Criminal Pl., 48; 1 Chitty’s Crim. Law, 283. The charge of neglect of duty in not putting up guide boards, is altogether too indefinite and uncertain to apprise a defendant of what he is to answer. He has the right to know the specific nature and character of the offence charged against him, that he may prepare himself to defend against it. This indictment does not allege at what crossing of public roads the defendant neglected to put up guide boards, nor even that there were any crossings of public roads in the district. As well might a defendant be required to answer to an indictment charging him generally with neglect to keep the public roads of his district in repair, as to charge him with neglect in not putting up guide boards, without specifying where, or that there were any crossings in his district requiring guide boards to be put up. The judgment of the Circuit Court is reversed. Judgment reversed.