¶1(on rehearing). Appellant raises now for the first time the point that the information filed against him does not contain an allegation that he was notified by the overseer to remove the obstruction or that he permitted the obstruction to continue after being notified by the overseer, and that the punishment for the continuation of the offense could not be imposed in this case. We consider it is too late to raise this question at this time.
¶2The record shows that the case was tried on the sole issue of fact as to whether or not the road obstructed was a public road within the meaning of the statute. Evidence was adduced, without objection, establishing the fact that appellant was notified by the overseer to remove the obstruction, and the court instructed the jury, without any objections on the part of the appellant as to that feature, that in assessing the punishment the jury should add $2 per day from the date of the failure to remove the obstruction after notice, up to the time of the trial. The only instructions requested by appellant and given by the court at his request related to the issue whether or not the road obstructed was a public one within the meaning of the law. This prosecution was, as shown in the original opinion, begun before a justice of the peace on an information filed by the prosecuting attorney. It is too late, under the circumstances of the trial below, for appellant to raise the question that the information fails to contain allegations of notice by the overseer for the removal of the obstruction and a continuation of the offense after such notice.
¶3It is also urged that the justice of the peace had no jurisdiction of the offense charged in the information. Counsel rely on the language of the statute which provides that when any person obstructs a public road “he shall be guilty of a misdemeanor and liable to indictment in the circuit court of the proper county,” etc. That part of the statute which reads that the person “is liable to indictment in the circuit court” was not intended to confer exclusive jurisdiction on that court, for the other language of the statute in express terms declares the offense to be a misdemeanor.
¶4Under the Constitution of 1874, art, 7, § 40, justices of the peace are clothed with “such jurisdiction in misdemeanor cases as is now or may be prescribed by law,” and the jurisdiction thus conferred has not been taken away by general statutes, nor do we think the effect of the statute now under consideration takes away that jurisdiction as to this particular offense. Our decision in Ganns v. State, 132 Ark. 481, we think, conclusive of this question against appellant’s contention.
¶5Other points urged in the petition for rehearing have been sufficiently discussed in the original opinion.
¶6Rehearing denied.