
    WILLIAMS vs. THE STATE.
    [INDICTMENT FOB FAILING TO PEBFOBM DOTY AS APPOBTIONEB OF BOADS.]
    1. Section 1338, subdivisions, of Revised Code construed. — Section 1338 of tlie Revised Code does not require the apportioner of roads to make a report to the grand jury, unless some overseer has failed to discharge his duty.
    Appeal from the Circuit Court of Choctaw.
    Tried before Hon. L. E. Smith.
    The facts are sufficiently stated in the .opinion.
    Glover & Coleman, for appellant.
    John W. A. Saneord, Attorney-General, contra,
   B. E. SAEFOLD, J.

The appellant was indicted for failing to perform his duty as an apportioner of roads. The only evidence against him on the trial was that he had not made any report to the grand jury. Upon this evidence, under the charge of the court, he was convicted.

Section 1838 of the Eevised Code prescribes the duties of apportioners. The 5th subdivision requires them “ to appoint one of their number to attend court, and report to the grand jury any overseer who has in any particular failed to discharge his duty, upon any road or portion of road within his precinct.” It was for alleged violation of this duty, in not making a report, that he was indicted; There is no evidence that he was appointed to make a report, or that any overseer in his precinct had failed to discharge his duty. Proof of both of these facts was necessary to a conviction.

The judgment is reversed, and the cause remanded.  