#### STATE vs. JOSEPH KING.

June 1843

An indictment against an individual for permitting a public bridge to become ruinous, which he was bound to repair, must set forth how he became subjected to the duty of making repairs.

The case of Slate v Wynne, 1 Hawks 451, cited and approved.

Appeal from the Superior Court of Law of Henderson County, at Spring Term, 1843, his Honor Judge Nash presiding.

The defendant was tried upon the following indictment. The jurors fox the Stale upon their oaths present, that on the 1st day of January, 1842, there was and yet is a public bridge commonly called the Free bridge, situate and being in .the county of Henderson, on the public road leading from Mills river to Flat Rock in said county, on French Broad River, used by and for all the citizens of the said county on foot, and with their horses, coaches, carts and other carriages to go, return, pass and repass, and ride over at their free will and pleasure — that Joseph King has a toll gate on the said road, and receives tolls from the passengers crossing over *412the said bridge and is bound and of right ought to keep the said bridge in good repair — that on the 1st day of January; 1842, and at divers other times afterwards up to the taking o£ j.jjjg inqUisjtion, to-wit, for the space of twenty days, the said Joseph King, late of the said county of Henderson, with force and arms,' unlawfully did permit and suffer the said bridge to be and remain very ruinous, broken, dangerous, and in great decay for want of upholding, maintaining, mending and repairing the same, so that the citizens upon and over the said bridge with their horses, coaches, carts, and other carriages, could not, during the time last aforesaid, go, return, pass or repass, and ride as before they were used and accustomed to do, and still of right ought to do, to the great danger of their lives and property, to the great damage and common nuisance of all the good citizens of the State upon and over the said bridge going, returning, passing, repassing and riding, against the form of the statutes in such cases made and provided, and against the peace and dignity of the State.

On the trial it was proven, that there was a bridge over French Broad River in Henderson county, that there was a public road leading to and from that bridge on either side, that the defendant had placed a gate across the said road near the bridge, and that he had, for many years before the finding of the bill, exacted toll from persons, passing the said bridge. There was no evidence offered to shew, that persons travelling this road could cross the river except by going over the bridge. It was further proved that the bridge was out of repair. It was objected by the defendant’s counsel, that, although this evidence might have been sufficient to convict the defendant for obstructing a public highway by means of his gate, yet it was not sufficient to render him liable for not keeping the bridge in repair. But the jury were instructed, that, if from the evidence they were satisfied that the bridge was the property of the defendant, that the road leading to and from the bridge was a public highway, and that the defendant exacted toll from the public for crossing the bridge, and further that there was not any *413way for the public to cross the river but by the bridge, the defendant was guilty, as it was his duty in law to' keep the bridge in proper repair; it being conceded it was out oí repair. The jury found a verdict against the defendant. A motion was then made in arrest of judgment, which being overruled, and judgment rendered for the State, the defendant appealed.

Attorney General for the State.

No counsel for the defendant.

Gaston, J.

It is very probable from the evidence disclosed in this case, that the appellant has been guilty of an offence, for which he is liable to punishment; but the indictment does not, in our opinion, set forth any offence with such explicitness as to warrant the rendering- of a judgment thereon. It-purports to charge the defendant with neglect of duty in permitting a public bridge to become ruinous, which he was bound to repair. As he was not chargeable with the duty of repairing such bridge of common right, it was essential that the indictment should set forth how that duty was imposed upon him. It accordingly alleges, that he has a toll gate on a public road adjoining the said bridge and receives tolls from passengers crossing the said bridge, and it thence infers as a legal consequence, “ that he is bound and of right ought to keep said bridge in good repair.” Now the statutory regulations, which we have on this subject, are those set forth in the 104th chapter and 26th section of the Revised Statutes, by which the County Courts are authorized to contract with builders to build bridges over large water courses and creeks, and to grant to them for a prescribed number of years the right to take certain tolls on persons, horses, carriages and cattle passing over the same, and by which it is made the duty of the builder or builders, his or their heirs or successors, “ to keep the same in constant repair at his or their sole expense.” Under the provisions, the builder and an assignee of the builder, whether *414an assignee in law or in fact, may be regarded as the temporary owner of a bridge of this description, and in that capa,' city is bound to keep such bridge in repair. Now the fact, that the appellant was in the habit of demanding and receiving tolls from passengers crossing the bridge, was evidence against him to shew that he was the owner of “a public toll bridge,” because he assumed to act in that character. State v Wynne, 1 Hawks, 451. But the indictment should have charged the fact of ownership, to which is attached the duty of making repairs, and not have set forth the evidence of that fact.

It must be certified to the Superior Court of Henderson, .that the indictment in this case is defective, and that judgment should be arrested.

Per Curiam. Ordered accordingly.