The charge against the defendant was that being subject to road duty, he neglected to attend at the time and place designated by the road overseer to work on a public road in obedience to the overseer’s warning to do so; that he failed to furnish a substitute, and neglected to pay a money consideration for his failure. See Mansfield’s Digest, sec. 5907.
The court charged the jury that the defendant was entitled to three days notice of the time and place he was required to attend, but that if he attended in obedience to a notice of less duration, this might be taken as a waiver of sufficient notice. This appears to have been the whole charge to the jury. It was inapplicable to the allegations of the indictment. The offence alleged was a failure to attend at the time and place designated by the road overseer to work the road. If three days had not intervened between the giving of the notice and the time designated for attendance, or if the defendant appeared in obedience to the overseer’s warning, the offence was not committed. If he appeared upon an insufficient .warning and submitted himself to the domination of the overseer, and thereafter neglected his duty as a road hand, the insufficiency of the warning would be no defence to a prosecution for such neglect. That offence is punishable under the second clause of the section, but the defendant was indicted under the first clause for a failure to attend the road working in obedierice to the overseer’s warning; and if in fact he did attend in obedience thereto, he was not guilty as charged.
Reverse the judgment and remand the cause for further proceedings.