I concur in the reversal of the judgment on the sole ground that the witness Beemer should have been permitted to answer the question put to him as to the circumstances under which he had directed Damuth to expend highway labor on the road in' question.
But I must dissent from the views of my brethren to the effect that it is competent for the defendant to prove that the super*690■visors of bis town told bim that tbe locus in quo was not a public highway. The proposed testimony is claimed to be competent as tending to prove that the defendant did not obstruct the alleged highway wilfully. The law does not make the supervisors a tribunal to adjudicate upon the legality of highways, and any opinion expressed by them, or either of them, as to whether a given locus in quo is, or is not, a public highway, is entitled to just as much weight as the opinion of any other equally well informed citizen, and no more. In this case it is fair to assume that the defendant was just as well (and perhaps better) advised of the facts which constituted the road in question a public highway (if it was a public highway), as were the supervisors, and I am quite unable to perceive how the opinion of the supervisors on the legal proposition involved can change the quality of the act of the defendant in placing the obstructions in the road.
I am constrained to believe that the decision of the court on this question has introduced a new principle into the criminal law, one which will tend to prevent any future convictions for offenses in which willfulness is an element, when the accused can show that, before he committed the act for which he is prosecuted, some person advised him that such proposed act was not unlawful. I am aware that my brethren do not intend to go to that extent; but such seems to me to be the logic of their decision.
I think that when the defendant obstructed the alleged highway, he acted at his peril. He knew that it had been traveled more or less for several years; he knew that it was claimed to be a public highway by user; and he knew, or might have known, all of the facts of such user: and having placed the obstructions therein with such knowledge or means of knowledge, if the locus in quo turns out to be a public highway, he should be held to have obstructed it wilfully, notwithstanding the erroneous legal advice given him by the town supervisors.
By the Court. — Judgment reversed, and a venire de novo awarded.