¶1delivered the opinion of the court.
¶2The plaintiff in error was indicted, in the circuit court of Jackson county, for obstructing a private way, and convicted thereof. Reasons in arrest of judgment were filed, upon the ground, that it was not alledged in the indictment, that the private way therein described, had been laid off and granted by the county court, pursuant to the act of 1811, ch. 60.
¶3The motion in arrest of judgment was overruled, and an appeal in error prosecuted to this court.
¶4In the judgment of the circuit court, we think, there is no error. It is no more necessary in an indictment for obstructing a private, than a public road, to aver that such road was laid off and established by the proper authority. This is properly a matter of evidence. It is sufficient in the indictment to alledge the existence of such road; but, on the trial, in support of that averment, the prosecutor must prove that the road in question, *120whether public or private, was laid off and established, as such pursuant to the provisions of the statutes.
¶5Judgment affirmed.