#### Gregory *vs.*The Commonwealth.

Indictment.

The act (of ’9U.CUIlcerr,'»g declares that— fe^ghail be madeacross, ]°¡c'"wick Pthe *owner or*ten*ant*of the land shall pay” the penalty: no other person is made liable, §• no indictment can be maintained *under*ocf, unless it charges that the accused was the owner or tenant of the land.

A fence in a road, is a nuisance, at common law ; and he who builds it may he fined andimprisoned.

An indictment foramisdemeanor, describing an offence at common law, but not within any statute,may be mamtai s tl, notwithstanding it concludes c against the statute in such cases made and provided as that may be rejected, as surplusage.-The^ouvt of 'Vppeals has no jurisdiction of any criminal or penal casein which imprisonment may be imposed. An indictment fur obstructing a highway, at common law, .is such a case--A writ of error in a cause where the Court of Appeals has no jurisdiction, will be quashed#

[Mr. C. A. Wiokliffe for the Plaintiff: Atto. Gen. Morehead for the Commonwealth.]

From the Circuit Court por Washington County.

*November*8.

Chief Justice Robertson

delivered the Opinion of the Court,

Tins writ of error is brought to reverse a judgment, for ninety six dollars, on an indictment against Godfrey Gregory, for making and continuing, for a specified period, a fence in a common highway, whereby the said highway was obstructed.

The indictment concludes with the words “against the statute, in such cases made and provided.” The only statute which could apply to such an obstruction as that charged, is a statute of 1797, declaring that “when any lence shall be made across or in any public road, the oicner or *tenant*of the land shall pay six shillings for ° every twenty tour hours the same shall he continued.” The indictment does not contain a charge which can . be deemed a violation of that enactment, because, waiving other reasons, it does not allege or show, that Gregory was either the owner which the fence was made. or tenant of the land on Unless he was the owner or tenant, lie was not indictable under the statute ; and, therefore, the circuit court erred in instructing the jury, that they were bound to find against him, six shillings for every twenty four hours.

But the facts charged amount to a *nuisance*at common law ; and it is now well settled, that the conclusion “against the statute” may he rejected as surplusage, when, although the indictment is professedly framed upon a statute, yet the facts charged are not sufficient *418undef the statute, but amount toan indictable offence at common law; and that, on such indictment, there may a a!U* convict'on5 according to the common law. 1 *Chitty’s Criminal*Law, 238.

jt jg eqnaily well settled, that the common law punishment for obstructing a common highway, is fine and *imprisonment.*1 *Hawk. Pleas of the Crown,*695; *Russel on Crimes, 305.*

And it has been frequently decided, that this court has no jurisdiction in a criminal or penal case, in which *imprisonment*is any part of the penalty or punishment for the offence charged.

Consequently, as the indictment charges an offence, not punishable by any statute, but which is a violation of the common law, and as th.e punishment for the of-fence charged is fine *and imprisonment*the judgment of the circuit court, although evidently erroneous, cannot be revised by this court.

Wherefore, the writ of error must be quashed, for want of jurisdiction in this court.