It is charged in the information that the appellant “did unlawfully and wilfully obstruct and cause to be obstructed a public road,” etc., describing the road. An exception was made to the information that it charged two offenses, and was therefore duplicitous. This exception was properly •overruled. Where a statute makes it penal to do this or that, mentioning several things disjunctively, an indictment or information may, in a single count, embrace all the prohibited acts by charging them conjunctively. (Copping v. The State, 7 Texas Ct. App., 61.) Besides, in misdemeanors the joinder of several offenses in the same indictment or information will not, in general, vitiate in any stage of the prosecution. (Gage v. The State, 9 Texas Ct. App., 259.)
It is shown by the evidence that in 1876 the Commissioners’ Court of Denton county appointed a jury of review to lay out a road in said county leading from Elizabethtown to Aurora. This .jury made a report of their work to said court, which was approved. It appears that the road as actually laid out and marked upon the ground by the jury was not upon the exact line described in their report, but was some two hundred yards north •of said line. This line described in the report of the jury was never actually laid out upon the ground, nor was any road ever opened upon it, nor has it ever been used as a road; but the road *31which was actually laid out by the jury was opened up, and has been used by the public ever since, and has been worked as a public road by overseers appointed by said court. It was for obstructing the line of road described in the report of the jury, and not the . road that was actually laid out, opened and used, that the defendant has been convicted.
We are of the opinion that this conviction is erroneous. It was the duty of the jury of review to “lay out and mark ” the road, not only upon paper, but upon the ground. (Acts 1876, p. 64, sec. 8; Rev. Stats., Art. 4369;) And when, as in this case, the report describes a line of road different from the one actually laid out, marked, used and recognized as the true road, we are clearly of the opinion that the latter should be considered the true road until authoritatively discontinued. It is shown that the road actually laid out and marked has been recognized and used as a public road for five years, and been worked as such under authority of the Commissioners’ Court; while the imaginary line of road, for the obstruction of which the defendant has been convicted, was never laid out and marked upon the ground, nor opened as required by law (Acts 1876, p. 65, sec. 13; Rev. Stats., Art. 4370), and has never been used as a road.
Under this state of facts we think the prosecution is estopped from now claiming that the road described in the report of the jury of review is the public road, instead of the one which was actually laid out, marked, recognized and used as such.
We think the verdict of the jury is unsupported by the evidence, and for this reason the judgment is reversed and the cause is remanded.
Reversed and remanded.
Opinion delivered April 11, 1883.