Opinion
(July Term, 1816.)
In an indictment against an overseer of the road, it is necessary to show that he had been served with a notice of his appointment ten days before the offense charged.
INDICTMENT against the defendant as the overseer of a road, charging the said road to have been out of repair. The defendant had (437) pleaded "Not guilty."
Evidence of the defendant's having acted as overseer was offered on the part of the State. It was objected that no evidence other than the record of his appointment was admissible to charge the defendant as overseer. A juror was withdrawn by order of the court and without the consent of the defendant. And it is referred to the Supreme Court whether any other evidence than the record of his appointment from the county court be admissible for the purpose of showing the defendant to be the overseer, and whether defendant can again be put upon his trial.
This case must be governed by the regulation which the Legislature has thought proper to make on the subject; and as the act of 1812 has declared that an overseer shall not be responsible for the insufficiency of the road until ten days after he is served with notice of his appointment, such notice and the time of serving form an indispensable part of the testimony before legal guilt can be inferred.