Jeremiah Dotson vs. The State.

used in some clauses, and other words in other clauses; while in other clauses still, no reference is made to the guilty knowledge or intent of the trespasser. Thus, clause four declares it a misdemeanor "to injure any spring or well, or water used by any worshiping assembly, or belonging to another person;" clause sixteen: to sever and carry away from the land of another, any grass, hay, corn, grain, fruit, or other vegetable, or produce; clause seventeen: to dig or sever and carry away, any earth, stone, marble, etc.; and in neither of these cases are any words of intent or motive, used.

The literal terms of the clauses of the statute under which this indictment is framed, would authorize such an indictment upon the commission of the act specified, no matter in what circumstances of ignorance or accident the trespass might have had its origin.

If one commit a trespass upon the land of another, his good faith in the matter, or ignorance of the true right or title, will not exonerate him from civil responsibility for the act. But when the statute affixes to such a trespass the consequences of a criminal offense, we will not presume that the Legislature intended to punish criminally, acts committed in ignorance, by accident, or under claim of right, and in the bona fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other construction.

If the defendant in this case, committed the trespass complained of, under color of title and a bona fide claim of right to do the act, and in good faith believing that he had a valid title to the premises, and the

The State vs. Marion Haynes.

right to the possession, he was not guilty of the misdemeanor charged in the indictment.

The instructions of the Court to the jury, which rested the guilt or innocence of the defendant solely upon the validity or invalidity of his title, was, therefore, erroneous, and the judgment must be reversed, and a new trial awarded.

MCCLAIN, J., concurred in the result.

THE STATE vs. MARION HAYNES.

1. FORGERY. Indictment for forgery need not allege that the instrument forged was stamped. It is not necessary that a forged instrument should be stamped when forged and uttered, in order that it should operate to the injury of others' rights: and an indictment for forgery need not allege that the instrument was stamped.

2. SAME. The intent to injure another. Mode of charging intent in the indictment. An indictment for forgery, which alleges the offer to pass a due-bill with intent to defraud the person whose name is forged to the paper, is a good indictment; for if the purpose of the defendant was to induce or compel the maker to pay the forged due bill, the intent to defraud him is clear, and there can be no objection to charging the intent in that mode.

3. SAME. Two offenses in the same count of the indictment. The second count in this indictment charges that the defendant did "offer to transfer and pass, dispose of, and put off, and did then and there transfer and pass to Mary Caps, a certain false and forged due bill," etc. Feld that this count does not charge two distinct and separate offenses.

FROM KNOX.

At the June Term, 1869, the indictment in this case, was, on motion of the defendant, quashed by the

The State vs. Marion Haynes.

court. The State, by its Attorney-general, James M. Thornburg, appealed to this Court.

T. HALL, presiding.

Judge ELIJAH

THOMAS H. COLDWELL, Attorney-General for the

State.

E. C. CAMP, for the defendants.

GEORGE ANDREWS, J., delivered the opinion of the Court.

The indictment in this case is for forgery, and contains two counts; the first charging the defendant with forging a certain due bill, with intent to defraud S. T. Atkins. The indictment sets forth the alleged fradulent paper, which purports to be a due bill signed by S. T. Atkins, and payable to bearer.

The second count charges the defendant with transferring and passing a like false and forged due bill, which is set out in the indictment, to Mary Caps, with intent to defraud S. T. Atkins.

The defendant moved to quash to quash the indictment, which motion was sustained by the Court, and the indictment quashed; and the State appealed in error to this Court.

The first objection taken to the sufficiency of the indictment in this record, is, that the fraudulent paper set forth by copy in the indictment, does not appear to have been stamped as required by the laws of the United States; and there is no allegation that it was stamped, or purported to be stamped. It is urged

The State vs. Marion Haynes.

that the statute of the United States declares that every instrument, requiring a stamp, which shall not be stamped according to law, shall be deemed invalid and of no effect; and hence, the forgery of such an instrument could not, in contemplation of law, work any injury to the party whose name is forged; or since its invalidity must appear upon its face, to the party to whom the document is transferred; and therefore the fradulent making or transferring of such an instrument is not "to the prejudice of another's rights." We do not undertake now to decide whether an omission under innocent mistake to affix the proper stamp renders the instrument void.

The objection has much plausibility, but we are satisfied that it cannot be sustained.

Under our practice of using, not stamped paper, but an adhesive stamp, to be affixed to the instrument, and cancelled with the initials of the party and the date, and which stamp can be so easily affixed by any person at any time, it is obvious that, to hold that no offense was committed by the making and uttering of a forged instrument, so long as no stamp was affixed, would be allowing a dangerous latitude to the evil-disposed.

It is the well settled law of England, that, upon indictments for forgery, the existence of a stamp upon the forged instrument need not be averred or proved: 1 Archb. Cr. Law, 485, 2 do. 869; 2 Bishop Cr. Law, sec. 443; 4 Black. Com., 247; 2 East Pleas of Crown, 955. A leading case in England, is Rex vs. Hawkesworth, cited in in East Pleas of Crown, 955,

The State vs. Marion Haynes.

where the defendant was indicted for forgery of a bill of exchange; and the same objection was taken, which is raised in the present case. The prisoner was convicted, and it was held by all the judges, that the conviction was proper; one ground of the decision, apparently being that the holder might, under the statutes then existing, get the bill stamped after it was made. Mr. East, after citing the above case, says it "was confirmed in Rex vs. Morton, which was an indictment for knowingly uttering a forged promissory note, as it appeared at the trial, on unstamped paper.

"The case underwent much consideration, and was debated by the judges in Michaelmas Term, 1795, and in the Hilary and Easter Terms, 1796, on the principal point, as well as upon the question whether the statute 31 Geo. III ch. 25, sec. 19, which passed after Hawkesworth's case, and prohibits the stamp to be affixed afterwards, had made any difference; and though two or three of the judges doubted, at first, the propriety of Hawkesworth's case, if the matter were res integra, yet they all agreed, that being an authority in point, they must be governed by it, and that the statute, 31 Geo. III, ch. 25, sec. 19, made no manner of difference in the question; for that the only thing to be regarded was the state of the note at the trial, and not what might be its state afterwards.

"And most of the judges maintained the principle of Hawkesworth's case to be well founded; for they held that the acts of Parliament, which had been referred to and relied on, being mere revenue laws, meant to make no alteration in the crime of forgery, but only to