State v. Smith , 25 Tex. 64 ( 1860 )

Bell, J.

—The substance of the allegation is, that the appellee was appointed overseer of a certain road precinct in February, A. D. 1859, and that for six months, ending with the 8th day of the succeeding November, he failed to measure in continuation the road of which he was overseer, and to set up mile-posts at the end of each mile, &c. The duty which the indictment alleges that the overseer failed to perform, is one which the law required him to perform “ within six months after his appointment.” (See Oldham & White’s Digest, Art., 1783; Paschal’s Digest, Art. 4070.)

An overseer of a public road who neglects for any period of six months, during the continuance of his trust, to set up mile-posts on the road of which he is overseer, is not, therefore, liable to be indicted. If he sets up such posts within six months after the time of his appointment, he has done all that the law requires him to do. The indictment before us is, therefore, bad; because it does not charge that the overseer of the road neglected to set up mile-posts, &c., within six months from the time of his appointment. Six months previous to the 8th day of November would include the time between the 8th day of November and the 8th day of the preceding May. The overseer was appointed in February, and from anything that appears in the indictment, we cannot conclude, that he did not measure the road, and set up the posts, as required by law, between the time of Ms appointment in February, and the 8th day of May.

The exception to the indictment pointed out very clearly its insufficiency, and was properly sustained by the court.

The judgment of the court below is

Affirmed.

Mem.—This opinion apjilies also to cases numbered 2303, 2304 and 2305, on the docket of this court. J. H. B.