#### THE STATE vs. JOHN SMALL.

If il.e wé&ther is so bad, as to prevent an overseer of a road from Working on the road, orto render unavailing any work lie might do, he ought to bt excused.

Appeal from the Superior’.Court of Law of Pasquotank County, at the Fall Term 1850, his Honor Judge Caldwell presiding.

Attorney General for the State.

No counsel for the defendant.

Nash, J.

The defendant is indict^Las an overseer of the road, set out in the indictment. was not denied, that the road was out of order and not in such repair as the law required. The defence was, that, during the time specified, the weather was such, that it could not be worked. It was shown, that, during the winter of ’49, ’50, and up to the finding of the indictment, the defendant had worked the road five days, and that up to April the weather was very wet, but that the latter month was fair. The bill was found at the Spring Term 1850 of Pasquo-tank Superior Court, which commenced on the 22nd of April. The Court was requested to instruct the jury, that the defendant ought not tobe convicted, because of the state of the weather, and if he had used due diligence. This was declined, but the jury were instructed, th&t where the law imposed a duty and its execution was pre* vented by the act of God, the party was excused; If, in this case* the weather was so bad as to preventive de* *572fendant from working on the road, or rendered unavailing any work he might have done, he ought not to be convicted. But, if they believed the witnesses, who testified to the state of the weather in the month of April, and of the road during that month, they ought 30 convict him. The jury found a verdict against the defendant, and from the judgment thereon he appealed.

!■ We see nothing in the charge that is erroneous. Whe* ther the facts testified to by the witnesses were true, was a proper enquiry for the jury — whether, if true, the defendant was excused or not, was a question for the Court. — - And we concur in the opinion expressed. We have looked through the record and see no error, or sufficient Cause to arrest the judgment.

Per Curiam. Judgment affirmed.