
    The State, Defendant in Error, v. Levens, Plaintiff in Error.
    1. An indictment of a road overseer for failing to keep his road in repair, under the act concerning roads and highways, (R. C. 1845,) must state, in terms or in substance, that the failure was wilful.
    
      Error to Morgan Circuit Court.
    
    Indictment of a road overseer for not keeping his road in repair. The indictment charged that the defendant, “ on, &c., in the county of Morgan aforesaid, was overseer of road district number fifteen, in said county, on the road leading from the first branch beyond Joshua Self’s to the cross street in the town of Florence, duly appointed and notified thereof, and the said road district was then and .there obstructéd by trees and limbs of trees, which then and there incommoded horsemen and carriages, and there were then and there stumps therein, exceeding eight inches in height, and wet ground and small water courses not causewayed or bridged in such a manner as to enable horsemen and carriages to pass with safety; and so the jurors aforesaid, upon their oath aforesaid, do say, that said road district was not then and there kept in repair according to law, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”
    
      F. P. Wright, for plaintiff in error.
    
      Gardenhire, (attorney general,) for the State.
   Scott, Judge,

delivered the opinion of the court.

This was an indictment against the defendant as road overseer, for failing to keep the road district of which he was overseer in repair. The defendant was convicted, and made a motion in arrest of judgment, which being overiuled, he sued out this writ of error. , ' .

This indictment is founded on the act for opening and repairing public roads and highways. (R. O. 1845, p. 960.) The 62d section of this act provides that, “ if any road overseer shall wilfully fail or neglect to keep his road in good repair, &c., he shall forfeit and pay the sum of ten dollars.”

The indictment does not charge that the overseer wilfully failed to keep his road in repair. Indictments must pursue the words of the statute on which they are founded. This is a well established principle in our code of criminal procedure.

Judge Ryland concurring,

the judgment will be reversed;

Judge Leonard absent.

Ryland, Judge.

The indictment is insufficient; it does not charge the offence in the words of the statute, nor in words of similar import, nor in words substantially of the same meaning.  