#### State v. Justices of Lenoir County.

From Lenior.

The Justices of a County Court are not obliged, by their own exertions, to build , and repair jails; they are only bound to use such means for the accomplishment of that end as the law prescribes, t. *e.*to lay a tax, appoint commissioners to contract, a treasurer of public buildings, &c. and for an omission of one or ail these acts, *it seems,*they may be indicted jointly as a body: but the indictment must charge which of the duties prescribed by the act has been neglected: it is not sufficient to charge generally, that they neglK gently and unlawfully did permit the jail to go to ruin and decay.

The question in this case arose upon the indictment, which was in these words, viz:

*195The Jurors for the state upon their oath present, that within the county of Lenoir there now is, and from time immemorial there hath been, a certain common jail, for the purpose of keeping in safe custody offenders and prisoners within the same, situate and being in the county of Lenoir, known by the name of the jail of Lenoir; and that on the first day of January, in the year of our Lord one thousand eight hundred and twenty-five, and continually front thence, until the day of taking this inquisition, the said jail hath been and still is greatly ruinous, in decay, and out of repair, for want of needful and necessary repairing and amending the same, so that offenders and prisoners, during such time, could not, nor can they now, be kept and secured in safe and secure custody within the said jail, as they ought, and were wont to be, and still ought to be, to the great hindrance and obstruction of justice; and that (naming the justices,) justices of the peace for the county of Lenoir, whose duty it is to amend and repair the same, when and so often as it shall be necessary, have failed so to do; but negligently and unlawfully did permit the said jail to go to ruin and decay, contrary to the act of the general assembly in such case made and provided, and against the peace and dignity of the state.

To this indictment defendants demurred, and the demurrer having been sustained below, Mr. Solicitor *Miller,*for the statcj appealed.

*Attorney General,*for the prosecution.

*Gaston,*contra.

Taylor, Chief Justice.- —

There are some rules relative to indictments, which it is indispensable to observe, notwithstanding the relaxation in point of form which is introduced by the act of 1811. The indictment must still contain a description of the crime, and a statement of the facts by which it is formed, so as to identify the accusation; otherwise the grand jury might find a bill for one offence, and the defendant be put on his trial in chief for another.

The defendant ought, also, to know what crime he is called upon to answer, and the jury should, appear to be warranted in their conclusion of « guilty or not guilty” upon the premises to be delivered to them. The Court should, also, be enabled to see on the record such a specific crime, that they may apply the punishment which *196the law prescribes; and the defendant should be protect? ed by the conviction, or acquittal, from any future prosecution.

These are elementary rules, which must be substantially observed.

In ascertaining the duties imposed upon the justices in relation to jails, we find that the act of 1795, *ch.*433. gives them power and authority to lay and collect taxes, from year to year as long as may be necessary, for the purpose of building, repairing and furnishing their several court-houses and jails, in such a manner as they shall think proper.

The other act of 1816, *ch.*911. converts this authority-into a positive duty, and directs that the justices shall, from time to time, lay a sufficient tax to erect and keep in good repair, the public jail, court-house and stocks, in their respective counties. Without deciding whether the neglect of this duty is an indictable offence, it is obvious that the justices are not called upon to answer that charge, but one altogether distinct, viz. *“*negligently and unlawfully permitting the jail to go to ruin and decay.”

There is no act which makes it the duty of the justices to repair the jail; and its going to ruin and decay, may he the consequence of their neglecting the duty which is assigned, but the offence producing that consequence should be positively stated. Against the charge, if stated in the terms of the act, they might have a defence, which they could not adduce in the present shape of the accusation; nor do I see how a conviction or acquittal on this indictment would protect them against a future prosecution for not laying the tax, (supposing it to be indictable.) The case of overseers of the road is very different from this; for the act makes it their positive duty to keep the roads in repair; a neglect in this point constitutes the indictable crime, and not the neglect of the preparatory steps, to which various penalties are annexed. For these reasons, without examining any other point that was made, I think the demurrer must be sustained.

*197Henderson; Judge —

The ibrm of this indictment is evidently taken from the Englisli precedents of indict-merits against the county for not keeping in repair the roads and bridges within their county, and 1 agree with the counsel for the defendants, that there is no analogy in the cases. Of common right, in England, the county is bound to keep all public roads and bridges in repair; they can protect themselves from the burthen only by throwing it on some other person. The *corpus delicti*is the permitting the road or bridge to be out of repair. The law will admit of no such defence as here, tlie employment of all the means in their power, an ineffectual attempt to repair; it presupposes an ability, and concludes that these defences are false in point of fact. The justices of our County Court are not obliged, by their own exertions, to build and repair jails; they are only to use the means to that end which the law has placed in their power; they are to lay the tax, make the order, appoint a treasurer of public buildings, appoint commissioners to contract for the building of the jail. An omission to perform one or all those acts, when necessary, is a violation of their duty, and they being of public concern, such omission is indictable. But the indictment must be conformable to the fact, it must charge which of these duties was omitted; for if this indictment were good, they might have made the order for repairing the jail, appointed the treasurer of public buildings, laid the tax for that purpose, and appointed commissioners to contract, and in every respect done their duty, and yet the indictment he true, that is, the jail out of repair on account of a failure somewhere beyond the control of the justices, and when they are áctually endeavouring to punish the individual who failed to do his duty and to rectify the injury which he had done. I repeat it again, they are not by law bound to build or repair jails, but to take specific measures to that end. Their liability arises not from the thing being undone, as here observed, but in not taking those mea*198sures which the law has instructed them to take. I have.' no hesitation in saying, that for this they are indictable, and without the least corruption, for in these cases they ac¿ no£ j„ their judicial characters but as police officers; and that they may be indicted jointly, or rather as a body; for it is for the omission as a body that they have offended; the omission of the one is not the omission of the other; they are not responsible for the acts of each other; but the body as a body is liable for its own acts. Any individual member may justify, or rather defend himself, as an individual, and escape individual punishment, by showing that he endeavoured to cause the body to do its duty. The demurrer should be sustained.

Haie, Judge, assenting,

Judgment aeeirmed.