¶1To render an overseer of a public road guilty of an offense under article 409, of the Penal Code, his failure, neglect or refusal to perform, the duties imposed upon him as such overseer must be wilful—that is, with an evil intent, with legal malice, without reasonable ground for believing such failure, neglect or refusal to be lawful, and without legal justification.
¶2In this case the evidence, in otir opinion, does not warrant the conclusion that the defendant wilfully failed, neglected or refused to perform his duties as overseer. While he did not compel all the hands apportioned to him to work the full time prescribed by law, he did work some of them the full time, and others' .a portion of the time, and the evidence conclusively shows that, if he had caused all of the hands to work the full time, it would have been impossible, owing to the length and bad condition of the road, and the small number of hands, to have kept said road in good repair. The law does not require impossibilities, and to hold, under the facts of this case, that the defendant is guilty of an offense because he failed to keep said road in repair would be holding him criminally responsible for failing to perform an impossibility.
¶3All that should be required, and all the law intends to require, is reasonable diligence and effort on the part of an overseer to perform the duties enjoined upon him, and what will amount to such reasonable diligence and effort must be determined by the facts of each particular case. If reasonable diligence and effort be exercised, there can be no wilful failure, neglect or refusal to perform duty.
¶4In our judgment the evidence in this case does not show a wilful failure, neglect or refusal by defendant to perform his duties as overseer of the road, and we therefore set aside the conviction and remand the cause for a new trial.
¶5 Eeversed and remanded.