Supervisor failing in duty.

injurious to the public a nuisance, and to punish it accordingly. Ibid.

Whether a law is politic or expedient or necessary, is not a question with which the courts have anything to do. Ibid.

Abatement of nuisance-Arrest of judgment.-Under the act of 1853, "to regulate the retailing of spirituous liquors, and for the suppression of the evils arising therefrom," it was not necessary that a house or place wherein spirituous liquors were sold or bartered' etc., without license, in a less quantity than a gallon, etc., should be kept in a disorderly manner, in order to make it a nuisance. 6 Ind. 444.

Information, under said act, alleging that the defendant, on, etc., at, etc., not being licensed to vend spirituous liquors by retail, did keep, etc., a certain house, wherein spirituous liquors were sold, etc., in less quantities, etc., in a disorderly manner, constituting a public nuisance, etc. The affidavit did not allege that the house was kept in a disorderly manner. Held, on motion to quash, that the variance was immaterial. Ibid.

The 15th section of said act does not limit the provisions of the act, in regard to nuisances, to licensed houses, but extends them to such houses. Ibid.

SEC. 4. SUPERVISOR FAILING IN DUTY.

SEC. 69. If any supervisor of roads fail to keep his highways and bridges in his road district in as good repair as the available labor or other means of such district will enable him to do, or fail to discharge any other duty required of him by law, he shall be fined not less than five nor more than one hundred dollars, and upon a prosecution for neglecting to keep a highway in good repair, it shall be sufficient to prove that such highway is commonly reputed as such. 2 R. S. 480.

CHARGE.

That A. B., on the tenth day of May, A. D. 1865, and continually afterward, until the day of the making of this presentment, at said County, was the supervisor of road district number - in New Al

bany township, in said county, and that within said road district number and in said county, there was then and there, and still is, a public highway, commonly called the Charleston road,

Supervisor failing in duty.

leading from New Albany, in said county, toward and unto Slate run, in said county, and that a certain part of said highway, to wit, all that part of said highway extending from Slate run aforesaid, toward the city of New Albany aforesaid, for the distance of four hundred yards in length, and of the breadth of eight yards, on said tenth day of May, in the year eighteen hundred and sixty-five, and continually afterward, until the day of the making of this presentment, in the road district aforesaid, at the county aforesaid, was ruinous, miry, deep, broken, and in great decay for want of due reparation and amendment of the same, and almost impassable for carriages and loaded wagons, and that said A. B., being supervisor as aforesaid, then and there, and during all the time aforesaid, unlawfully failed to keep said part of said highway, so out of repair as aforesaid, in as good repair as the available labor and other means of said road district would have enabled him to do. Bicknell's Crim. Law, 408.

Description of highway-Termini.-An indictment charged that the defendant was supervisor of the highways in road district No. 1, in the township, etc., county, etc.; that he willfully suffered that part of the road running from S. in said county in the direction of G. in said county, situate in said road district, to be obstructed, etc. Held, that the description of the road was sufficient. 6 Blackf. 346. The termini of the road need not be stated in such indictment. Ibid.

Same-Means in hands of supervisor.-The indictment in such case need not aver that the defendant had the means to keep the road in repair; his not having such means being matter of defense. Ibid.

Indictment held good.-An indictment against the supervisor of a highway for not repairing the same, alleged the existence of the road, stated, in general terms, the liability which the law imposed on the defendant, and charged him with unlawfully and willfully violating his duty. Held, that the indictment was not objectionable for not alleging that the road had been established by law, or for omitting to aver that the board of county commissioners had. allotted hands to the defendant, etc. Held, also, that if through the default of the commissioners, etc., the defendant could not keep the road in repair, he might avail himself of the matter by special plea, or by evidence under the general issue. 5 Blackf. 73.

Failing to account for fine collected.-—An indictment against a supervisor of highways alleged that the defendant, on, etc., at, etc.,

Obstruction of highways, streams, bridges, etc.

having then and there collected a certain fine of one L., unlawfully and corruptly failed to make return thereof, or to expend the same, or to pay the same over to the party entitled to receive it, against the statute, etc. Held, that no offense was charged in the indictment. 8 Blackf. 151.

Same. It is no violation of law for the supervisor not to pay such fine over, or to make returns thereof, on the same day he receives it. He may expend it on the roads, make return thereof at such time as the law prescribes, or, in certain contingencies, pay it over to his successor. Ibid.

Cumulative remedies.-The remedies against supervisors for failing to keep their highways in repairs, viz., by civil action and by criminal prosecution, are cumulative. 5 Ind. 515; 3 Id. 447.

A supervisor having moneys in his hands necessary for the repair of the highways of his district, is not authorized by section 361 (1 R. S. 1852, p. 468), to delay all expenditures of the same until the 15th of September of each year. 5 Ind. 515. See 7 Ind. 551.

Description. The indictment should describe the particular roads, and parts of roads, which are suffered to be out of repair. 1 Ind. 44; Bicknell's Crim. Law, 409.

It seems necessary to aver that the roads were not kept in as good repair as the available labor and other means of the district would admit, that being the language of the statute. Ibid.

But where facts are alleged which substantially contain such averment, the language of the statute need not be used. Thus it is held :

An indictment against a supervisor for not keeping a road in repair, need not aver that he did not keep it in as good repair as the available labor or means enabled him to do. 8 Blackf. 69.

Such an averment, however, is substantially contained in an indictment alleging the road to be so obstructed by trees, etc., as to be nearly impassable, etc. Ibid.

SEC. 5. OBSTRUCTION OF HIGHWAYS, STREAMS, BRIDGES, ETC.

1. Obstructing highways.

SEC. 66. Every person who shall in any manner obstruct any public highway, railroad, tow-path, canal, turnpike, plank or coal road, or injure any toll or other bridge, or toll-gate, culvert, embankment, or lock, or make any breach in any

Obstruction of highways, streams, bridges, etc.

canal, or injure any material used in the construction of such roads or canal, such person, and all other persons aiding and abetting therein, shall be fined not exceeding five hundred dollars, or imprisoned not exceeding three months; and upon prosecution for obstructing a highway, it shall be sufficient to prove that it is used and worked as such. 2 R. S. 479.

CHARGE.

day of in the year
"

That A. B., on the at said county, unlawfully obstructed a certain public highway there situate, leading from the town of Rockport, in said county, to the town of Grandview, in said county, by then and there unlawfully erecting a fence across the said highway. See Bicknell's Crim. Pr. 403.

FORM AND CONTENTS.

Words-Ditch-Embankment.-Words in an indictment, except such as are technical or defined by law, must be construed in their common and usual acceptation. An indictment for obstructing a highway by unlawfully cutting "a ditch alongside of, and making an embankment alongside of and across, said highway, thereby causing water to flow in said road," was not bad for its failure to allege the depth of the ditch and the height of the embankment. 52 Ind. 483.

Affidavit-Sufficiency of—An affidavit, warrant for arrest, and mittimus, charging that the defendant did, unlawfully and knowingly, obstruct a certain public highway "by then and there manufacturing a rail fence across said road," sufficiently describes the offense of obstructing a public highway. 49 Ind. 142.

Same.--Prosecution before a justice of the peace for obstructing a highway. The affidavit charged, "that on or about, etc., at the said county of Jefferson, in the State of Indiana, one A. did unlawfully obstruct a highway then and there situate, being the highway running nearly north and south through section nine, town three, range eight east, from the Scaffold Lick and Kent road to the Lexington and Paris road, in said county and state, by then and there unlawfully erecting fences across said highway, as affiant is informed and believed." Held, that the highway was sufficiently described. Held, also, that it was enough to charge that the obstruction was within the jurisdiction of the court, and not necessary to state the particular place where it was erected on the road. Held,

Obstruction of highways, streams, bridges, etc.

also, that the fact that the charge was made on information and belief did not render the affidavit defective. Held, also, that the mistake of the draftsman in writing "believed," instead of believes, was immaterial. 31 Ind. 67.

This section (121 of the road law of 1849) does not repeal section 29 of the felony act (2 R. S. 438). 37 Ind. 119.

Crimes; definition of.-The statute of May 31, 1852, requiring that crimes and misdemeanors shall be defined," could not trammel the future action of the legislature. 23 Ind. 185.

Statutes. When two statutes are inconsistent, the last will be held to be the law.

Ibid.

Prosecution for obstructing a public highway, by "erecting and maintaining a fence and stable thereon." 16 Ind. 451.

A road used for twenty years is a highway; and its width at the end of that time becomes the established width. 15 Ind. 226; 10 Id. 219; 8 Id. 425; 5 Id. 459. See 57 Ind. 19.

Highways are established in three ways: 1. By the board of commissioners of the county; 2. By express grants; and, 3. By dedication arising by presumption from a continued use of the place for a considerable period of time by the public as a public highway, with a knowledge thereof by the owner, and without objection on his part. 42 Ind. 279; 25 Id. 352. See also, on the third point, 10 Ind. 219, 391; 8 Id. 425; 7 Blackf. 512.

The indictment must show some actual and substantial interference with the rights of the public. 58 Ind. 417.

It is sufficient to state that the road is a highway without accounting for its origin. 5 Blackf. 73.

The following description was held sufficient: "A public highway, running from Spencer, in said county, to Gosport, in said county." 6 Blackf. 346.

It is not necessary to state the termini of the highway. Ibid. 8 Black f. 69.

Instruction to jury-Reasonable doubt.-On the trial of a prosecution for obstructing a highway, it was not error to instruct the jury that before they could convict, they must be satisfied, beyond a reasonable doubt, that there was a public highway where it was claimed that the obstruction had been placed, that there was an obstruction, and that the defendants, or some one or more of them, caused the obstruction. 52 Ind. 309.

Highway-Dedication. The fact that a road has been used by the public for a considerable length of time, with the knowledge