By the first count in the information, defendant is charged with unlawfully and wilfully obstructing and injuring, and causing to be obstructed and injured, a public road.
This count is not sustained by the evidence, the facts being-that the obstruction complained of, a fence, was on the defendant’s land at the time said road was established. Said road was never opened after it was established. It could not be obstructed within the meaning of article 405 of the Penal Code until it had been opened. It was the duty, and within the power, of the commissioners court to have the road opened. (Rev. Stats., art. 4360.) It was not the legal duty of the defendant to open it, and he violated no law in permitting his fence to remain where it was before the road was laid out.
A second count in the information charges that the defendant *695did unlawfully and wilfully prevent the free use of said public road, said prevention not being expressly authorized by law, etc. We find no authority in the Penal Code for this count. It charges no offense known to the Penal Code. It was doubtless framed under article 124 of the Code of Criminal Proce lure, bu* that provision is without a penalty, and a prosecution can not, therefore, be maintained under it.
Opinion delivered June 23, 1888.A general verdict of guilty, without specifying upon which count, was returned by the jury, and judgment was rendered and entered accordingly.
Because the evidence does not support the conviction under the first count, and because the second count charges no offense against the law, the judgment is reversed and the cause is reminded.
Reversed and remanded.