State v. Jopling

29 Tenn. 418 | Tenn. | 1850

Totten, J.

delivered the opinion of the court.

This case is a presentment in the circuit court of McNairy county, against the defendant, for the non-performance of his duty as overseer of a public road. The presentment was quashed on motion of defendant, and the State has appealed in error to this court.

The presentment charges, in substance, that the defendant being overseer of the road referred to, neglected to mile-mark it and put up pointers at the forks thereof, to the inconvenience of the people, &c.

This duty to mile-mark and index the road is prescribed by the 4th section of the act of 1819, ch. 26. The penalty for neglect of this duty is stated in the 5th section of the same act, to be a fine not exceeding five dollars. The objection is, that the presentment, having one count only, charges two distinct offences. We do not thiuk the objection well taken.

The presentment charges a neglect of duty, and states two facts in which it consists, that is, that defendant did not mile-mark and index the road; being duties .prescribed, by the same act, being of the same character, and the failure to perform them punished by the same penalty; if he is guilty of either or both he will incur the same penalty. We see no reason for two presentments in such a case. This is not like the case of Greenlow vs. State, 4 Hum. 25. There two offences were charged in the same count, and the punishment in one case differed from that in the other.

Let the judgment be reversed and the case remanded for further proceedings.