State v. HagemanState v. Hageman
The opinion of the court was delivered at this term.
Thе defendant moves to quash this indictment on several grounds. 1st. Because it is repugnant and inconsistent. The indictment charges that there was and yet is a common public highway leading from the Franklin and Georgetown turnpike road, to Benjаmin A. Hageman’s orchard, and that a certain part of the said road,- called the New Road or Division No. 15, extending from the Franklin and Georgetown turnpike road to Benjamin A. Hageman’s orchard, containing eight hundred yards in length and ten yаrds in breadth, on the 18th January 1881, and until the 1st of March 1831, was in a ruinous condition, &c. To say the least of it, this part of the indictment is ambiguous: there is a road leading from A to B and a certain part of it, called the new road, extending from A to B, is out of repаir; thus describing a part as co-extensive with the whole.
But there is a second and in my opinion a more decisive and fatal objection to this indictment. It alleges that the “ defendant was appointed according tо the statute in such case made and provided, to open, clear out, make, amend, repair and keep
Where an offence consists in an omission to do some act, the indictment must show how the defendant’s obligation to perform, that act arises, unless it is a duty annexed by law to the office which the defendant sustains. Stark. Or. pi. 180; Rex v. Holland, 5 T. R. 623.
So in an indictment against a township for not repairing a. ■road, or against a county for not repairing a bridge, it is sufficient to allege, that the road is out of repair, or the bridge in a state of deсay; because the township in one case and the county in the other, are bound to repair. Stark. Cr. pi. 177. And so it would be in the case of an overseer of the road, if the law annexed to his office the duty of repairing аll the roads in the township, or the particular road or part of a road, in question :. and in such case it would be sufficient to say, the defendant was. debito modo electus, and proof that he acted as such officer, would sustain the indictment in that respect. Stark. Cr. pl. 180; Berryman v. Wise, 4 T. R. 366; Gordon’s case, Leach 581.
If the indictment was (as it may be in some cases in England) for not accepting, or not taking the oath of office; then the indictment ought to set out, how, when, by whom appointed, because if not legally elеcted he would not be guilty of any of-fence, in refusing to accept. Cowp. 633; 5 Mod. 96; Rex v. Burden, 4 T. R. 778.
But this is an- indictment for not repairing a certain part off a certain highway in the township of Franklin.. The law does not annex to the office of overseer of the township of Franklin,, the duty of keeping in repair all the roads,'or this certain part of a road in the said township. The charge of keeping all the-roads in repair, is devolved by law upon the township ; the duty of an overseer to repair a particular part arises upon the designation of the township committee. By the 12th section of the act incorporating townships, Rev. Laws 342, the inhabitants of the several townships', at their annual town meetings are, among other officers, to elect, as “ many overseers of the highways as they shall deem necessary or convеnient.” If the officers so elected, refuse to accept, or a vacancy happens by death
If, however, the township committee did assign to the defendant, this particular district, then the indictment ought to have alleged, that he being at the time an overseer of the highways, of the township of Franklin, the township committee did assign to him the said district. If on the other hand, the township committee neglected to make such division, the indictment should have so stated, and shewn that there had been a previous assignment to which the defendant was bound to conform; and how, or in the manner in which it came to be the duty of the defendant to repair this particular part of the road. Stark. Cr. pl. 177, 178. Rex v. Inhabitants of Penderryn, 2 T. R. 513; Rex v. Inhabitants of Great Broughton, 5 Bur. 2700; Archb. pl. 106, 107, 159.
The indictment says, “ the defendant was appointed to repair this road, according to the statute in such case made and provided.” Does this mean, that he-was elected at an annual or special town meeting ? or that he was elected by the township committee, in default of an election by town meeting ? Or that being previously elected an overseer, he was appointed by the township committee to take charge of this district ? If it means that he was appointed an overseer, by the town meeting, or by the township committee, then there is no averment that he was appointed to this particular district, or that this particular district was assigned to him. If it means that the township committee assigned to him or appointed him to repair this district, then there is no averment that he was ever elected an overseer ; and if so, they had no right to assign to him any duty as such. In order to fix the duty upon the defendant, two distinct things were necеssary to be done. 1st. To make him an overseer under the acts incorporating townships, Rev. Laws, 342 ; and 2dly, to assign to him a division of the road, under the act concerning roads, Rev. Laws 621. To say that he was duly appointed accоrding to law, may be very well in common parlance; but in an indictment, if a reference to a statute is necessary, it must be correctly made, and here the reference is to one “ statute,” and the court cannоt determine which of the two statutes above mentioned, is intended.
I think the indictment is defective in another particular. Whether the defendant was bound to keep any part of the road in repair, and whether such obligаtion rested on him from the 18th January until the 1st March 1831, as stated in the indictment, are questions of law to be settled by the court upon the facts stated on the record. But as I have before remarked, it no where appears when he was elected, when his office commenced, or when it terminated. Nor is it averred that he was in office during the period complained of. The indictment it is true, says that he ought during all that time to have repaired, &c. but this is coming to a conclusion of law, without any facts being stated, upon which such a conclusion could arise. It is
Foiíd, J. The defendant is indicted as overseer of the road, for not repairing a highway in the cоunty of Somerset, and moves to quash the indictment for uncertainty and inconsistency in the description of the place. The indictment says that there is a highway leading from the Franklin and Georgetown turnpike road, to Benjamin P. Hageman’s orchard, a part of which is out of repair, and this part it says is called the new road, or division No 15, extending from the said turnpike road to the said orchard. Thus the whole road is not out of repair but only a part of it, and yet this part is the whole extent from the turnpike road to the orchard. The defendant cannot find out by this description whether he is indicted for the whole road or for only a part of it, nor consequently how to shape his defence. For this reason it is evidently insufficient and ought to be quashed.
Drake, J. This is an indictment against the defendant, founded on the eighteenth section of the act, entitled an act concerning roads, which makes any overseer of the highways liable to be presented or informed against, and fined on conviction, for the badness, or want of repair, of any highway within his limits, or division. The indictment, after alleging that a certain public highway was out of repair, proceeds to state that the defendant was appointed, according to the statute in such case made and provided, to open, clear out, make, work, аmend, repair, and keep in good order, the said highway; and that he took upon himself the burden and duty of so doing. Among other objections made to this indictment, it is insisted that this allegation is entirely too vague ; that it does not prеsent to the court the grounds of the defendant’s liability with sufficient certainty. And I consider this objection to be well taken. In order to make the defendant liable, he must, in the first place, have been duly appointed an ovеrseer of the highways. It should appear, at least by an allegation to that effect, that he
Judgment quashed.
Cited in Green v. Kleinghaus,