It is objected that the indictment is not sufficiently certain, in that it cloes not state that the road, of ■which the" defendant is Overseer, lead from the courthouse, or *311any other, or what “ noted ” place. It is averred, however, that it is a public road ; that the part of it of which the defendant was Overseer, leads from Kickapoo to Duval's Ferry ; and the indictment negatives by averment, the defendant’s having performed the duty enjoined by the statute, (Feb. 4, 1854, Sec. 19,) by continuing the measurement of the road, &c., either from the courthouse, or any other place, which may have been the starting point in the measurement of the road. It describes the road and the breach of duty with such certainty, as to notify the defendant of the precise facts constituting the offence of which he is charged ; and that is all the certainty that can be required. The reason of the rule which requires that criminal proceedings be construed strictly, does not apply with peculiar force to this case, the penalty for the breach of duty being but five dollars.
The breach of duty was fully made out by the proof. But if the evidence were insufficient, that was a ground for a motion for a new trial, and not of a motion in arrest of judgment.
The late Act (of Feb. 9th, 1854, Sec. 69,) declares that “judgment in criminal cases, after verdict, shall not be ar- “ rested or reversed upon any exception to the indictment or “ other accusation, if the offence be charged with sufficient cer- “ tainty for judgment to be given thereon, according to the “ very right of the case.” There is no doubt that the offence was so charged in the present indictment. It was not necessary that the indictment should allege that the road, which is averred to be a public road, led to or from the courthouse or any other “ noted place, or town.” The law requires that Overseers of all public roads shall “ measure such parts of roads as fall within their respective precincts.” (Act of Feb. 4th, 1854, Sec. 19.) The indictment negatives the peformance of this duty by the defendant, by averments which preclude any argument, inference or presumption to the contrary. If the defendant was prevented by the failure of other Overseers *312to perform their duty, it devolved on him to show it; for the " presumption is that each of them has done what appertained to his duty, until the contrary appears.
There is no error in the judgment, and it is affirmed.
Judgment affirmed.