#### STATE v. HINTON.

(Filed November 18, 1902.)

HIGHWAYS — Roads — Residence.

A person, is not liable to road duty, where lie is temporarily employed, he having a place of domicile elsewhere.

INDICTMENT against Irvey Hinton, beard by Judge O. E. Allen and a jury, at January Tenn, 1902, of the Superior Court of Wake County. From a verdict of guilty and judgment thereon, the defendant appealed.

Robert D. Gilmer, Attorney-General, for the State.

Thos. M. Argo, for the defendant.

Douglas, J.

The defendant was convicted of refusing to work the public roads in Wake Forest Township, he being a resident of the city of Raleigh.

But one point need be considered for the determination of this case, as it strikes at the root.

On, the trial the Court below was asked by the defendant to instruct the jury that, “If they believed the evidence as a whole, the defendant was entitled to a verdict of not guilty.” This was refused by the Court, who, in lieu thereof, charged the jury that, “If they believed from the evidence, beyond a reasonable doubt, that the defendant left Raleigh with his wife and went to Mr. Haywood’s, his wife* taking all of her things with her from. Mr. Adams’, and the defendant having a sleeping-room a,t the Baptist University, where he slept as a servant, but lived with his Avife, and during the vacation at the college they went to Mr. Haywood’s under an agreement, she to cook for an indefinite period and he to work as a laborer for two months, unless called back sooner, and he was not so called back, and while he was so working he Avas summoned *771to work tbe road, being one of tbe bands on Haywood’s plantation, and bad wilfully refused to work, tbey should find tbe defendant guilty.”

In tbe chaxge> as well as the refusal to charge, there was error. It appears from tbe evidence that the défendant bad permanent employment in tbe city of Ealeigb, where be worked for at least ten months in tbe year-, and where be paid taxes and voted. He worked at the Baptist University, where be also slept, but- says that be lived with bis wife at Mr. Adam’s. Whether he meant that be took bis meals at tbe latter place, or merely considered it bis home, does not clearly appear, nor do we think it material, as both places are in Ealeigb. During tbe vacation at tbe University, be was permitted to work elsewhere, and he made a contract to work on Mr. Haywood’s farm for sixty days, unless sooner recalled to the University, to pay off an old debt. His wife also worked at tbe same place and for the same purpose, she receiving $3 per month with board for her services, and be $7.00. That they should both work during their vacation at snob moderate wages to pay off an old and uncolleetable debt, is to their credit. We say “nncollectable,” because be appealed in forma pauperis.

The defendant did not acquire á residence in Wake Forest Township', where he bad been only three weeks when summoned to work tbe road, nor is there any evidence tending to show that be bad any such intention. On the contrary, all the evidence tends to prove that be was there purely for a temporary purpose, with tbe expressed intention of returning to Ealeigb on or before tbe expiration of tbe 60 days.

But it is contended that be acquired a temporary residence at Haywood’s, still retaining his domicile in Ealeigb. Suppose be bad worked around by tbe week or day, would be have been liable to work on every road near which he happened to be when tbe road bands were called out %

*772Again, it is urged that his wife “moved her things to Mr. Haywood’s.” Whether she carried them on her head or in a two-horse wagon, does not appear. In any event, we are not prepared to sa,y that the temporary location, of a wife’s personal belongings draws to them in law tire residence of the husband.

We have decided this case upon the reason of the thing which does not seem) to be in conflict with any authorities or precedents called to’ our attention. Wei do not think that the law intends to impose upon anyone the double burden of working the roads in different districts at the same time; and as the defendant had paid taxes for working, the streets of Raleigh, admittedly the place- of his domicile, we do not think he could be required to work the roads in any or every district where he happened to be temporarily employed.

New Trial.