#### STATE v. WILEY TOMLINSON and others.

Inclietmént — Navigáble Streams — Obstructions.

1. Upon an indictment charging that the defendants did “unlawfully and' wilfully fell trees and, place obstructions in the mill race below the mill of E, the same being a natural passage for water but not navigable for rafts, &c., whereby the natural flow of water through said race was retarded,. &c.Held,

(1.) That as the obstructions were placed below the mill, the offence charged was not a violation of Bat. Kev. ch. 32, § 110 ;

(S.) That as the indictment does not contain an averment that the obstructions were not put in the race “for the purpose of utilizing the water as a motive power,” it is fatally defective under Bat. Kev. ch. 32, § 154.

■2. An indictment should negative an exception contained in the same clause of the Act creating the offence.

(State v. Norman, 2 Dev. 222, cited and approved.)

Indictment for a Misdemeanor tried at Spring Term, 1877, ■of Wilson Superior Court, before Moore, J.

The defendants, Wiley, Erank, John and Buck Tomlinson were indicted as follows :

“The jurors, &c., present, that (defendants) did * * unlawfully and wilfully fell trees and place obstructions in the mill race below the mill of one C. E. Einch, the same being & natural passage for water, but not navigable for flats or rafts, whereby the natural flow of water through said mill race was retarded, contrary, &e.” Upon motion of defendants’ counsel His Honor quashed the bill of indictment, and Moore, Solicitor for the State, appealed.

Attorney General, for the State.

Mr. Hugh F. Murray, for the defendants, submitted :

It is not indictable to obstruct an unnavigable natural *529water course. State v. Pool, 74 N. C. 402. The statute, Bat. Rev. cli. 32, § 110, refers to artificial water eourses above the ■dam, while this indictment is for obstructing a natural water course below the dam. Penal statutes must be strictly construed.

Eaiecloth, J.

The bill of indictment cannot be held to ■embrace the offence denounced in Bat. Rev. ch. 32, §110, which provides against obstructions to the modes of furnishing water for the operation of mills, &c., because by its express terms the obstruction is located “in the mill race below the mill.” It was no doubt drawn in view of § 154 of said chapter, but it is fatally defective under that section, inasmuch as it fails to aver that said obstructions were not put in the race “for the purpose of utilizing water as a motive power,” or words of the same import. “If there be any exception contained in the same clause of the Act which creates the offence, the indictment must show negatively that the defendant, or the subject of the indictment does not come within the exception.” Archbold Cr. Pl. 25 ; State v. Norman, 2 Dev. 222.

Let it be certified that there was no error in the order-quashing the indictment to the end that the defendants may be discharged.

Peh Cueiam. Judgment affirmed