Alexander v. State , 16 Ala. 661 ( 1849 )

PARSONS, J.

The plaintiff in error was indicted “ as overseer of a public road of the second grade, beginning at and leading from the twenty-third mile post to the county line,” within the county of Benton. The indictment has two counts describing the road substantially in the same language; and there was a general demurrer to 'each of the counts, which was overruled. It is now contended for theplaintiff in error ■ that this description is defective and uncertain, and that the demurrers should have been sustained. It is true, that there may have been different roads of the same grade, leading from the twenty-third mile post to the county line; but it is alleged in the indictment that the plaintiff in error was the overseer of the piece of road now in question. As the burthen of proof lay upon the State, it is clear that the solicitor had not the power to shift his charge at the time of trial to any other piece of road which might admit of the like description, because it would be necessary to connect the overseer with it by proof. The offence is of the lowest grade, and the utmost certainty is not required.

There were several exceptions to the ruling of the court below, as appears by the bill of exceptions, the second of which is now insisted on as error. This supposed error was in admitting as evidence the order of the commissioners’ court of roads and revenue, by which the plaintiff in error was appointed “ overseer of the road from the twenty-third mile post to the county line, second grade.” This is insisted on the more as error, because it was proved that this piece of road was not known in the neighborhood by that name or designation, but that the same ivas known as the road from Jacksonville to Cedar Town, Georgia. The description of the road in the order is not void, beeause it does not conform to the neighborhood name or designation, nor is the indictment variant from the order. Any description in the order by which it conld be ascertained was sufficient. We have examined the whole record and can discover no error.

Let the judgment be affirmed.