¶1delivered the Opinion of the Court
¶2Cornell being indicted for obstructing a public road, by placing a fence across it, and attempting, on the trial, to defend his act, by proving that the county court had, by its order, given him leave to change the road, and that he had opened a new road in consequence of that order, — the circuit court instructed the jury, that it was not his duty to prove, that he had made the change as authorized by the order ; but that it was the duty of the commonwealth to prove, that the new road was not as designated by the order ; and, thereupon, verdict and judgment were rendered against the commonwealth.
¶3This instruction cannot be sustained. Before the old road should be deemed to have been. discontinued, and before Cornell had a right to close it, it was indispensable, that he had made the new road conformably with the authority given by the county court; and, of course, he could not justify the obstruction of, the old road without proving, not only that he had opened a new road, but that he had done it in the manner prescribed by the order of the county court.
¶4Judgment reversed, and cause remanded.