majority">SMITH, P. J.

The defendant was indicted, tried and convicted for a violation of section 7827, Revised Statutes.

The appealing defendant assigns several errors as grounds for reversal, among which are:

C?nd”ctaeñtTpreo™£Vjerfans. I. That the commencement of the indictment does not recite that the “grand jurors on their oath present,” etc. By reference to the approved English and American precedents it will be found that this recital is generally made in them. The leading authorities on criminal pleading and practice declare such recital is necessary. 1 Chitty, Orim. Plead. '"'333; Whart., Orim. Plead. & Prac., sec. 95; 1 Bishop’s Grim. Proceed., see. 655.

An indictment, however, which recited that the grand jurors were “impaneled, sworn and charged,” etc., has been held sufficient, though it did not in terms recite “on their oath present,” etc. It would seem that if it sufficiently *416appears that the grand jurors acted under the binding force and solemnity of an oath that will suffice. Gottschalk v. State, 17 Fla. 895.

Some of the states have enacted statutes of jeofails and amendment which provide that where such a recital is not made the judgment shall not be reversed or affected in consequence thereof. Our statute provides that no indictment shall be deemed invalid or judgment thereon be arrested, or in any manner affected by reason of any defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits. R. S. sec. 4115. How could the imperfection referred to tend in the remotest degree to prejudice the substantial rights of the defendant upon the merits ? The grand jury had been duly impaneled, sworn and charged as required by law, and that was all that the defendant was entitled to. Certainly in a misdemeanor case like this we are not authorized to hold that the defect in the indictment thei’ein is such as warrants a reversal of the judgment for error apparent upon the face of the record.

~onUfhigh-ruc" ways: notice. II. The indictment in this case was founded on the first subdivision of said section 7827, Revised Statutes, and not on the second. When the offense is charged trader the latter, notice is required, but not so when under the former. This is quite apparent from the reading of the section in its entirety.

Appellate pracbeiowxception III. An examination of the .transcript of the bill of exceptions does not disclose that the defendant saved an exception to the ruling of the court in admitting the testimony oi the witness Johnson, the deputy county clerk, so that the action of the court in that regard is not subject to review here.

*417menttoob; roach surveyor’s IV. The defendant complains of the action of the court in permitting the witness Quick, who was county surveyor, to testify as to how he executed an order oi the county court requiring him to survey the road described in the indictment. The witness did not undertake to reestablish a decayed or destroyed section comer. He was not proceeding under section 8338, Bevised Statutes. The defendant’s objection only went to his testimony in respect to the establishment of a section comer which seems to have been previously established by him, so that he did not, while surveying the road at the time referred to* in his testimony, undertake to establish a section corner. But however this may be, we can not discover that such testimony was prejudicial to the defendant.

cedure: instructions: excepeons: appellate practice. V. The objection that the court did not of its own motion give an instruction on “reasonable doubt” can not be noticed, for the reason that there is no statement in the motion for a new trial that the court failed to give all needful and proper instructions. If the court did fail to instruct the jury upon all to questions of law arising in the case which were necessary for the information and guidance of the jury, exceptions should have been saved at the time such failure occurred and the point should have been preserved, as it was not, in the motion for a new trial. State v. Cantlin, 118 Mo. 100; State v. Krueger, 134 Mo. 262.

VT. The first and second instructions given by the court for the state, and of which the defendant complains, are, as far as we can discover, correct expressions of the law applicable to the case.

*418criminal law: ánTpiatíed road!*417The first told the jury that if they believed that under an order of the county court “said road was laid out, platted and opened,” etc., and in the second they were told that *418“if tbe county court had ordered the road opened at the point mentioned in the indictment, and that there was a plat thereof in the co'unty clerk’s office,” and further “that the public had used said road as a public highway for a period of mors than ten years, then it was a public road within the meaning of the charge in the indictment,” etc. The statute provides “that all roads in this state that have been opened by an order of the county court, and a plat thereof filed with the clerk of the county court of the county in which said roads are situated, and have been used as a public highway by the traveling public for a period of ten years or more, shall be deemed legally opened and established county roads, notwithstanding there may have been irregularities in the proceedings to establish and open such roads,” etc. E. S. sec. 7847. The language of the state’s second instruction was substantially the same as that of the section of the statute just quoted. The first is perhaps imperfect in that it makes no reference to the use of the road as a public highway by the travelling public If this was an omission it was supplied by the second, so that when the two were taken together, and read as one charge, they were not subject to serious objection. The jury could not have been misled by them. They were not repugnant in theory.

Criminal procedure: appellate practice: motion for new trial: bill of exceptions. YII. The defendant further complains that the court gave instructions, two and three for the state after the conclusion of the argument, but this complaint we can not consider for the reason that it does not appear from the bill of exceptions to be a fact; or, even if so, it does not appear that the defendant saved an exception to the action of the court. It is true that in the motion for a new trial this fact is made one of the grounds thereof, but that was not enough. Unless the fact otherwise appears from the bill of exceptions it can not be made a ground of a motion for *419a new trial which we can notice. We are bound to presume that the court timely instructed the jury, as directed by the statute, until the contrary affirmatively appears, from the recitals of the court in its bill of exceptions.

Criminal law: obstructing highway: evidence: venue. VIII. The court did not err in refusing the defendant’s instruction in the nature of a demurrer to the evidence. The defendant contends that this should have been given because the venue was not proved, but an examination of the evidence has convinced us that it was ample on that point.

íeádíng'insirucIN. The court refused the defendant’s second instruction which told the jury, in substance, that if the defendant’s fence had been maintained by him where it then was, or “practically so,” for a period of ten years or more, and that a road forty feet wide was left and had been used by the public, to find defendant not guilty.

All of the witnesses, including the defendant and his son, testified that the defendant in 1895 removed his old fence and thereafter put up a Page wire fence, whicii was set out further than the old one. No witness testified that the new fence was on the line of the old one at the place where it was charged to be an obstruction in the road. It was clearly shown to be eight to ten feet further out than the old fence at that place. Defendant, on the evidence, was not entitled to an instruction on any such theory. Even if the instruction had been justified by the evidence in other respects, it was objectionable for telling the jury that if the defendant’s fence had 'been where it now is, or “practically so,” etc. These words were well calculated to mislead the jury, who might have concluded that even though the defendant had set his new fence a few feet further out than the old one was yet it had always been “practically” maintained where “it now is.” If the defendant’s new fence was placed on the road at all, if it encroached thereon to any extent *420whatever, it was an obstruction therein. The statute declares that “fencing upon the right of way” of any public road is an obstruction thereon. These words should not be used in an instruction in a case of this kind.

In conclusion, it is proper to say that there was evidence adduced which we think was sufficient to justify the finding of the jury, which is conclusive on us.

Discovering no error in the record warranting any interference by ns with the judgment, it must be affirmed.

All concur.

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