State v. Stalls

37 Tex. 440

Opinion

Ogden, J.

The indictment in this case was attempted to be drawn under Article 2351, Paschal’s Digest, and charges' that the defendant “ did unlawfully and feloniously, without the “ consent of the owner, V. H. Allen, carry away certain tira- “ her.” The indictment is neither in the language of the statute, nor does it use equivalent language; “ unlawfully ” is not equivalent to “ knowingly,” for an act may be knowingly done, and yet not be unlawful, ánd an act may be unlawful, and yet committed in ignorance. This may have been the facts in regard to the act for which the defendant in this case was indicted. He may have owned land immediately adjoining the land of V. H. Allen, and have taken the timber from Allen’s land, believing the same to be his. This would have been unlawful, and he might have been held responsible to Allen for damages, but certainly he could not, under our statute, be held criminally liable. The language of the statute shows conclusively that the Legislature intended to except from penalty all acts of ignorant trespass. We are of the ■ opinion that the indictment fails to charge an offense against the laws of the State, and that the court did not err in quashing the same, and that the judgment should be affirmed.

Affirmed.