
    STATE v. YODER.
    (Filed November 26, 1901.)
    
      HIGHWAYS — Public Roads — Failure to Work.
    
    Where a person is notified to work the public road for two consecutive days, and goes to the place appointed the first day and the overseer is not there, he is not indictable for failure to attend on the second day, not having further notice.
    ■INDICTMENT against Jacob Yoder, beard by Judge W. B. Council and a jury, at October Term, 1901, of the Superior Court of Catawba County.
    This case was tried in the Court below on appeal from the judgment of a Justice of the Peace. The jury rendered the following special verdict: “That defendant was a resident and citizen of Jacob’s Fork Township, and was liable to work on the public roads of said townships he was indicted for failing to work the road; he was served with notice by one Whitener, who was overseer of a portion of the public road leading from Plickory to King’s Mountain; said Whitener was a resident and citizen of Hickory Township, but was appointed overseer of the road by the Board of Supervisors of Jacob’s Fork Township; the said overseer notified the defendant, who had been assigned to him as one of his hands, to meet him at the forks of the roads in Hickory Township, to work for two days; the notice was three days or more before the day fixed for the working to begin; he was to work on that portion of the road in Hickory Township; defendant went to the"place at the time, prepared to begin work; the overseer was not there, and did not arrive during the day; the defendant did not go on the second day; the overseer did not work the first day, but, at the request of some of the hands, did not work until the second day; the defendant had no notice of tbe postponement; tbe road be was to work was not on tbe dividing line between Hickory and Jacob’s Eork townships; one hundred and fifty yards of tbe road was in Hickory Township, tbe residue in Jacob’s Eork Township. If, upon tbe foregoing facts, tbe Court is of tbe opinion that defendant is guilty, then tbe jury find him guilty; but if tbe. Court is of tbe opinion that be is not guilty, then tbe jury so find.” Upon tbe special verdict, tbe Court pronounced tbe defendant guilty, and be appealed from tbe judgment.
    
      Brown Shepherd, for the Attorney-General, for tbe State.
    
      L. L. Witherspoon, for the defendant. |
   Douglas,, J.,

after stating tbe facts. ■ We tbink bis Honor erred in pronouncing the defendant guilty upon tbe special verdict. Tbe defendant being notified to meet tbe overseer at a certain place on a certain day, was present at tbe time and place appointed. That be did not meet tbe overseer, was the overseer’s fault, and not bis own. It is contended that tbe defendant is guilty because be failed to return tbe second day. "Where ought be to have gone ? It is true, be was summoned to work two days, but be was not summoned to meet tbe overseer at the same place on both days. If tbe overseer bad worked tbe road with bis bands on tbe day appointed, surely be would have gotten out of sight of tbe starting place by tbe second day. Moreover, tbe defendant bad no notice of tbe postponement, and bad no assurance of meeting tbe bands on tbe second day., If tbe overseer could postpone the work without notice for a day, why could be not do it for a week? And yet could a man be expected to lose a week’s time in tbe vain endeavor to do two day’s work ? Tbe general road law is burdensome enough, without our adding any additional burden by judicial construction.

In our opinion, tbe defendant has complied with tbe notice as far as could reasonably be required, and is therefore not guilty.

This ends tbe case, and it is not necessary for us to discuss tbe interesting questions raised by tbe motion in arrest of judgment. Tbe judgment of tbe Court below is reversed.

Eeversed.  