Commonwealth v. M'Dowell

6 Ky. 24 | Ky. Ct. App. | 1813

OPINION of the Court, by

Judge Logan.

This is a writ of error toa judgment of the Bullitt circuit court quashing the presentment of a grand jury against a surveyor of a public road for not keeping the same in repair. The presentment is founded on the information of one of the assistant judges of that court, but has not stated expressly where he resides, or in what respect or at what time the road was out of repair, except that it was within three months then last past.

The law requires that the residence of the person on whose information a presentment is made, shall be set down at the foot of the presentment; but it is by no means clear that the omission to make this statement will be fatal to the presentment. The provision seems to have been intended principally, if not solely, for the information of the proper officers who to summon as witnesses in support of the prosecution ; andas such is free from the objection of the defendant, although omitted to'be mentioned at the foot of the presentment. But this point becomes the less important to decide, because there are other objections which we deem fatal to the presentment, and that the court below therefore' decided correctly in quashing it.

In making presentments the law directs that not only the crime, but the time and place of its commitment shall be specified. Various duties are required of surveyors of public roads towards keeping them in repair, and different modes provided for punishing the failure to perform those duties. It seems therefore proper, in the construction of the law relating to the manner of exhibiting the offence, to require such a degree of precision of the offence or neglect of duty, together with the time of the failure, as would prevent different prosecutions for the same thing. Now that the offence, in not keeping the road in repair within three months, could not afford any satisfactory information in bar of prosecutions for the same neglect within that period, is obvious ; unless, indeed, it were permitted to be taken in bar of all other prosecutions for similar offences within that period. The law not only requires that grand juries shall present surveyors of roads for not doing their duty, but likewise declares that any justice of the peace, who upon his own view shall discover a road, bridge, causeway, &c. out of repair, shall issue a war-' rant, &e. It seems, therefore, that such precision should be observed in proceeding by either mode, as would shew in the other that the party had been proceeded against for the same thing, where such had been the fact.-Judgment affirmed.

The hon. WM. OWSLEY, who had resigned in vacation, was re-commissioned andtook the oaths of o/Jlce on the 24th and his seat, in Court o;~ the 29th of ipril.