
    The State, Appellant, vs. Tuley, Respondent.
    
    X. An indictment under the 57th section of article one of the act concerning “roads and highways,” (K. C. 1845,) must distinctly chai-ge that the fork of the road At which the defendant failed to place a finger hoard, is within the road district of which he was overseer; and to constitute an offence under this section, the roads forming the fork must not terminate at the same point.
    
      Appeal from Clay Circuit Court.
    
    Gardenhire, (attorney general,) for the State.
    No appearance for the respondent.
    
      
      Three other precisely similar cases were decided at the same time with this case, viz : The State v. Singleton, The State v. Bond, and The State v. Stephenson, the judgments in all being affirmed.
    
   Ryland, Judge,

delivered the opinion of the court.

The defendant, Tuley, was indicted by the grand jury at the April term of the Circuit Court within and for the county of Clay, in the year 1854, for neglect of duty as a road overseer. The defendant demurred to the indictment. The court sustained the demurrer, and the State brings the case here by appeal.

The sufficiency of the indictment is the only matter for the consideration of this court. The indictment is as follows :

State of Missouri, Fifth Judicial Circuit, Clay county, to-wit — In the Circuit Court of Clay County, in the state of Missouri, of April term, A. D. 1854. The grand jurors for the state of Missouri, for the body of the county of Clay aforesaid, upon their oath present, that Victor M. Tuley, late of said county of Clay, on, &c., in the year of our Lord, one thousand eight hundred and fifty-four, at the county of Clay aforesaid, was, and ever since that time has been, and still is the road overseer of that part of a certain public road in the county of Clay aforesaid, known as road district number thirty-three, to-wit: commencing at the forks of the road, where the one goes to Turnham’s landing and the other to Meek’s ferry, thence to Richfield, and that the said Victor M. Tuley, road overseer as aforesaid, on, &c., at, &c., unlawfully and wilfully failed and neglected, and be still does wilfully fail and neglect to erect and keep a post at the fork of the road, in the road district aforesaid, where a certain public road leading to Richfield, in said county of Clay, leaves the said road, to-wit: the road district aforesaid, and to affix - a finger board thereto, containing a legible inscription, directing the way and noting the distance to the next remarkable place on the road; or to affix to a suitable tree, at the proper place, to-wit: at the forks of the road aforesaid, a finger board, containing a legible inscription, directing the way and noting the distance to the next remarkable place on the road, against the form,” &c.

1. This indictment is for an alleged violation of tbe 57th section, first article of the statute concerning roads and highways, (R. C. 1845,) which is as follows: Sec. 57. “Every overseer shall erect and keep a post at every fork of the road or cross road in his road district, unless a suitable tree be found at the proper place, to which shall be affixed a finger board containing a legible inscription, directing the way and noting the distance to the next remarkable place on the road.”

The indictment' is insufficient; it does not directly charge that there is a fork in the road over which the defendant is overseer. This is left entirely to implication. The indictment avers that Tuley is road overseer of that part of a certain public road known as road district number thirty-three, to-wit: commencing at the forks of the road where one goes to Turn-ham’s landing, and the other to Meek’s ferry, thence to Rich-field ; it then avers that Tuley wilfully failed and neglected to erect and keep a po^t at the fork of the road, in the road district aforesaid, where a certain public road leading to Richfield leaves the said road, to-wit: the road district aforesaid.

From the indictment, we are led to suppose that the road district number thirty-three, over which the defendant is road overseer, begins at the fork, where one road leads to Turn-ham’s landing and the other goes to Meek’s ferry, thence on to Richfield; and that the said district number thirty-three consists of that road which goes to Richfield by Meek’s ferry ; if this be correct, then the objection taken, as one cause of the defendant’s demurrer, is a good one, viz : “ That the road charged with leaving the road, so as to make the fork, in fact was the same road starting from and going to the same place.”

In indictments, the principal facts in which the offence consists, must be positively or directly charged — must not be left to be implied by the court.

The indictment in this case is not drawn so as to charge the offence directly; it is too uncertain ; it requires implication, (which is not permitted,) before we can say that there has been an offence.

Judge Scott concurring,

the judgment below is affirmed.  