Opinion
(Filed November 26, 1901.)
HIGHWAYS — Public Roads — Failure to Work.
Where a person is notified to work the public road for two consecutive days, and goes to the place appointed the first day and the overseer is not there, he is not indictable for failure to attend on the second day, not having further notice.
INDICTMENT against Jacob Yoder, heard by Judge W. B. Council and a jury, at October Term, 1901, of the Superior Court of CATAWBA County.
Brown Shepherd, for the Attorney-General, for the State.
L. L. Witherspoon, for the defendant.
This case was tried in the Court below on appeal from the judgment of a Justice of the Peace. The jury rendered the following special verdict: "That defendant was a resident and citizen of Jacob's Fork Township, and was liable to work on the public roads of said township; he was indicted for failing to work the road; he was served with notice by one Whitener, who was overseer of a portion of the public road leading from Hickory to King's Mountain; said Whitener was a resident and citizen of Hickory Township, but was appointed overseer of the road by the Board of Supervisors of Jacob's Fork Township; the said overseer notified the defendant, who had been assigned to him as one of this hands, to meet him at the forks of the roads in Hickory Township, to work for two days; the notice was three days or more before the day fixed for the working to begin; he was to work on that portion of the road in Hickory Township; defendant went to the place at the time, prepared to begin work; the overseer was not there, and did not arrive during the day; the defendant did not go on the second day; the overseer did not work the first day, but, at the request of some of the hands, did not work until the second day; the defendant had no notice of the postponement; the road he was to work was not on the dividing line between Hickory and Jacob's Fork townships; one hundred and fifty yards of the road was in Hickory Township, the residue in Jacob's Fork Township. If, upon the foregoing facts, the Court is of the opinion that defendant is guilty, then the jury find him guilty; but if the Court is of the opinion that he is not guilty, then the jury so find." Upon the special verdict, the Court pronounced the defendant guilty, and he appealed from the judgment.
We think his Honor erred in pronouncing the defendant guilty upon the special verdict. The defendant being notified to meet the overseer at a certain place on a certain day, was present at the time and place appointed. That he did not meet the overseer, was the overseer's fault, and not his own. It is contended that the defendant is guilty because he failed to return the second day. Where ought he to have gone? It is true, he was summoned to work two days, but he was not summoned to meet the overseer at the same place on both days. If the overseer had worked the road with his hands on the day appointed, surely he would have gotten out of sight of the starting place by the second day. Moreover, the defendant had no notice of the postponement, and had no assurance of meeting the hands on the second day. If the overseer could postpone the work without notice for a day, why could he not do it for a week? And yet could a man be expected to lose a week's time in the vain endeavor to do two day's work? The general road law is burdensome enough, without our adding any additional burden by judicial construction.
In our opinion, the defendant has complied with the notice as far as could reasonably be required, and is therefore not guilty.
This ends the case, and it is not necessary for us to discuss the interesting questions raised by the motion in arrest of judgment. The judgment of the Court below is reversed.
Reversed.