The opinion of the court was delivered by

The charge of the court to the jury was in conformity to the decision of this court, in the case of State v. Jericho, and also to a previous decision of the court in Orleans, county in July, 1839, between a school district and the town of Glover. The question, raised on exceptions taken to the proceedings of the court, on the jury trial, must be considered as settled by those determinations.

Another question is presented, as to the sufficiency of the indictment. A motion in arrest was filed in the county court and overruled. In an indictment, every fact and circumstance which is a necessary ingredient to constitute the offence, should be stated, and an omission to set forth such facts is fatal. If all the facts stated in the indictment may be true, and still the person indicted not guilty of the of-fence charged, the indictment is insufficient, and no sentence or judgment can be pronounced thereon.

The statute, under which this indictment is found, makes it the duty of the selectmen of the several towns, previous to the first day of January in each year, to assess a tax of three cents on the dollar on the list of polls and rateable-estate of such towns, the money, arising from which, is tobe divided among the several school districts, according to the number of children in such districts between the ages of four and eighteen years. If the town have other funds for the support of schools in such town, those funds are to be distributed in the same manner, and the selectmen may omit to assess such tax, if the funds are sufficient to produce a sum equal to the tax, or they may omit so much of the tax as is *570equal to the sum produced by such funds, if they are sufficient to produce a part of the sum to be otherwise raised by tax. The vote of the town is required to assess the tax, but the duty, is laid upon the selectmen,and their neglect creates a forfeiture on the town.

In an indictment under the act, the duty of the selectmen should be stated, their neglect, and that there was no legal excuse for such neglect in consequence of the town having other funds in whole or in part.

This indictment is informal in not stating this duty and neglect of the selectmen, and in alleging the omission and neglect to raise the tax wholly as the fault of the town.

A more formidable objection, however, is, that the neglect is laid in not assessing the whole tax of three cents, without having other funds to as great an amount as would be raised by a tax of three cents ; whereas the selectmen would not be under obligation to assess the’whole tax of three cents, if they had other funds sufficient to produce a part of the sum which would be raised by such tax.

The facts set forth in this indictment may all be true, that is,that the town had not funds to as great an amount as would be raised' by a tax of three cents, and the selectmen omitted to raise a tax to that amount; and yet the town may have other funds to produce a part of the sum which would be raised by such tax, and the selectmen may only have omitted to assess so much of said tax as was equal to the sum produced by such fund.

The indictment being insufficient in this particular, the judgment should have been arrested. The judgment of the county court, is,, thorfore, overruled and judgment arrested.