The defendant is indicted as an overseer of the road set out in the indictment. It was not denied that the road *Page 391 was out of order and not in such repair as the law required. The defense was that, during the time specified, the weather was such that it could not be worked. It was shown that, during the winter of 1849-'50, and up to the finding of the indictment, the defendant had worked the road five days, and that up to April the weather was very wet, but that the latter month was fair. The bill was found at the Spring Term, 1850, of Pasquotank Superior Court, which commenced on 22 April. The court was requested to instruct the jury that the defendant ought not to be convicted, because of the state of the weather, and if he had used due diligence. This was declined, but the jury were instructed that where the law imposed a duty and its execution was prevented by the act of God, the party was excused. If, in this case, the weather was so bad as to prevent the defendant from working on the road, or rendered unavailing any work he might have done, he ought not to be (572) convicted. But if they believed the witnesses who testified to the state of the weather in the month of April, and of the road during that month, they ought to convict him. The jury found a verdict against the defendant, and from the judgment thereon he appealed.
We see nothing in the charge that is erroneous. Whether the facts testified to by the witnesses were true, was a proper inquiry for the jury; whether, if true, the defendant was excused or not, was a question for the court. And we concur in the opinion expressed. We have looked through the record and see no error, or sufficient cause to arrest the judgment.
PER CURIAM. Judgment affirmed.