State v. Chinn

29 Tex. 497 | Tex. | 1861

Bell, J.

—Weare of opinion that there is no error in the judgment of the court below.

The indictment charges, that the appellee was appointed overseer of a certain road on the 21st day of February, and that on the 28th day of March, in the year aforesaid, he accepted the appointment, “and that within six months thereafter he failed and neglected,” &c.

We think the expression “ within six months thereafter ” must be taken to refer to the time of the acceptance of the appointment, and not to the time of the appointment itself.

The statute upon which the indictment is founded (O. & W. Dig., Art. 1783) requires the overseer of the road to perform the duties nan^ed in the indictment within six months from the time of his appointment, and not within six months from the time he may have signified to the county court his acceptance of the appointment. [Paschal’s Dig., Art. 5070, Note 1111.] Indeed, the statute provides, “that he shall he presumed to have accepted the appointment, unless he notifies the county court, within a certain time, of his non-acceptance.” So that the law does not wait for any formal act of acceptance on the part of the overseer, hut requires him to do certain things within a certain time after his appointment. There is nothing in the indictment to exclude the conclusion, that the overseer may have performed the duties named in the indictment between the 21st day of February, the date of his appointment, and the 28th day of March, when he is said to have accepted the appointment, so that, taking the allegations of the indictment to be true, it does not state & prima fade case against the appellee.

There maybe other objections to the indictment, but we do not deem it necessary to consider them. The judgment of the court below is

Affirmed.