¶1The appellant was indicted for failing to perform his duty as an apportioner of roads. The only evidence against him on the trial was that he had not made any report to the grand jury. Upon this evidence, under the charge of the court, he was convicted.
¶2Section 1838 of the Eevised Code prescribes the duties of apportioners. The 5th subdivision requires them “ to appoint one of their number to attend court, and report to the grand jury any overseer who has in any particular failed to discharge his duty, upon any road or portion of road within his precinct.” It was for alleged violation of this duty, in not making a report, that he was indicted; There is no evidence that he was appointed to make a report, or that any overseer in his precinct had failed to discharge his duty. Proof of both of these facts was necessary to a conviction.
¶3The judgment is reversed, and the cause remanded.