#### *M’Clintic v. The Commonwealth.

June, 1842.

Indictment*—Building Fence across Road. — Indictment on statute of 1834-5, ch. 77, § 20, against owner and tenant of land through which a public road passes, for building a fence across a portion of the road, and continuing the fence so built across said road for three days, held sufficient on demurrer.

Same—Same—Evidence.—On trial of such indictment, court refuses an instruction asked by defendant, that the jury must be satisfied from the evidence that the fence was built across the road: Held, the instruction was properly refused.

Same—Same—Verdict—Judgment.—Verdict on such indictment finds defendant guilty, and assesses his amercement to five dollars; and judgment is rendered for the amercement and costs: Held, there is no error in such proceeding.

Am indictment was found in the county court of Greenbrier against Thomas M’Clintic, charging that he did, on the22d of November 1839, “build a fence across a portion of the public road in the county aforesaid, leading from &c. being then and there owner and tenant of the lands through which said public road runs, and did then and there continue the said fence so built as aforesaid across said public road, from the said 22d day of November 1839 to the 25th day of November 1839, contrary to the form of the statute† in such case made” *443&c. The defendant demurred to the indictment, and the court overruled the demurrer. He then pleaded not guilty. At the trial, he moved the court to instruct the jury, that, under this indictment, they must be satisfied from the evidence, that the fence in the indictment «mentioned was built across the public road therein mentioned: which instruction the court refused to give; and he excepted to the refusal. The jury found him guilty, and assessed his amercement to five dollars, and the court rendered judgment against him for the said amercement and the costs of the prosecution. That judgment was affirmed in the circuit court of Greenbrier, upon a writ of error thereto sued out by the defendant: and the general court awarded a writ of error to the judgment of affirmance, upon a petition of the defendant assigning for error, 1. that his demurrer to the indictment was improperly overruled, the charge of building a fence across a portion of the road being insufficient ; 2, that the instruction he asked for at the trial was improperly refused; 3. that it was improper for the jury to assess an amercement by their verdict, instead of merely finding how long the fence had been continued across the road, and leaving the court to render judgment for the fine ascertained by law.*

*

See monographic *note*on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.

†

The statute of March 3,1835 (Acts of 1834-5, ch. 77, §20, p. 66, 7), enacts, that if any person shall obstruct a public road by fencing or otherwise, he shall for-*443felt and pay a sum not less than five nor more than thirty dollars for every offence; “and when any fence shall be made across a public road, the owner or tenant of the land shall pay one dollar and sixty-six cents for every twenty-four hours the same shall remain,” The last clause Is nearly a transcript from 3 Rev. Code of 1819, ch. 386, § 11, p. 338.— Note In Original Edition.

*

See House’s case, 8 Leigh 755, where an objection of a similar kind was made to the verdict, and overruled. (Note by reporter.)

BROWN, J.

I am of opinion that the indictment in this case is bad, and ought to have been so adjudged on the demurrer thereto: I should therefore be for reversing the judgment of the county court sustaining the indictment, and of the circuit court affirming the same, and for giving a judgment here in favour of the defendant. But a majority of the court being of opinion that the indictment is good, and that the judgment ought not to be reversed on that ground, I can see no error in the refusal of the county court to give the instruction set out in the bill of exceptions, and am therefore for affirming the judgment.

Judgment affirmed with costs.