
    Greenlow vs. The State.
    This indictmentagainsi an overseer of a road averred, that the road of which he was overseer was ruinous and out of repair; and th at it was not measured and mile-marked; and that no posts.of durable wood at each mile were set up: Held, that it charged two distinct offences in the same count, and was, therefore, not a good indictment.
    Greenlow was indicted in the Circuit Court of Shelby county, and the case was submitted to a jury at the February term, 1843, Dunlap, Judge, presiding. The Jury returned a verdict of guilty. The defendant moved in arrest of judgment. The motion was overruled, and judgment rendered, and the defendant 'appealed.
    
      Daniel, for plaintiff in error.
    This indictment contains but one count, and that count chargés two distinct offences. 1st. Not repairing the road; and 2d. Not mile-marking it. Different penalties are attached to these offences by the statutes; and words or allegations which may have been the grounds of the verdict cannot be rejected as surplusage. 11th Mass. 93, 2d Mass. 163.
    
      Attorney General, for the State.-
   GheeN, J.

delivered the opinion, of the court.

The indictment in this case contains but one count. It charges, that the plaintiff in error being overseer of the road leading from Raleigh to Memphis, permitted said road to be out of repair, and ruinous; and that said road was not carefully measured and marks and posts of durable wood at each mile set up on said road. The defendant was found guilty, and fined five dollars; and from which judgment he appealed to this court.

The indictment in this case charges two distinct offences in the same count, and for this reason it is bad. By the act of 1804, ch. 1, sec. 9, overseers of roads are made indictable for failing to keep the road in repair; and as no specific penalty is affixed, they may of course be punished as persons guilty of other misdemeanors are punishable. By the act of 1819, ch. 26, sec. 5, it is provided, that the grand jury may present overseers of roads for failing to mile-mark, and set up posts marked, &c., and that on conviction, he shall be fined in a sum not exceeding five dollars. These acts constitute the offence of failing to keep the roads in repair, and the offence of failing to mile-mark the road, and set up posts at each mile, entirely different and distinct offences; the punishment of the one being limited to a fine of five dollars, while the punishment of the other may be by a fine as high as fifty dollars. The indictment is, therefore, double, and for that reason vicious. Reverse the judgment.  