
    The State v. West.
    It is not necessary that an indictment for cutting or removing a landmark should allege “that the stake or corner tree was marked as a corner tree or boundary line, or that the “defendant knew them, or either of them, to be such corners or boundary lines.55 It is sufficient in this case for the indictment to fellow the language of the statute, and if the cutting or removal was not knowingly or intentionally done, but was through inadvertence, accident, or mistake, that would be matter of defense which must come from the defendant, and need not be anticipated in the indictment.
    See this case for several rules as to the certainty required in indictments.
    A mol ion to dismiss for want of an assignment of errors comes too late after the case has been submitted on the merits.
    Appeal from Jasper. The appellee was indicted, under article 386 of the Digest, for cutting' and removing' a landmark. The indictment contained two counts : one charged the cutting of a tree, the other the removing' of a stake, described as allowed landmarks of a certain tract of land described in the indictment. In the description of the offense the indictment followed the words of the statute. On motion of the defendant the court quashed the indictment, on the ground that it “does not allege that the stake or comer “ tree was marked as a corner tree or boundary line, or that the defendant “ knew them, or either of them, to be such corners or boundary lines.” After the case bad been submitted on briefs, tire appellee moved to dismiss for want of an assignment of errors.
    
      Attorney General, for appellant.
    The indictment could not be better, following, as it does, the words of the statute on which it is founded, in characterizing 1 lie offense, and in addition giving all essential details; and if the indictment is not good, and ought to have been quashed, so ought the statute. If further discussion is desired, please read my brief Ho. 1 in this cause, and advance a step beyond the passage cited by appellant’s counsel in Arch. Crim. PL, pp. 46, 46a, 47, &c., where the subject of statutory indictments is considered.
    
      H. O. Hieles, for appellee.
    The question presented by the record in this cause is the .sufficiency or insufficiency of the indictment.
    The indictment is certainly insufficient in law to sustain the charge, because the primary ingredient constituting the offense, which is the evil intent, or, in other words, the knowledge on the part of West that the tree specified was a corner or boundary tree or landmark, is absolutely wanting. (Cliitty Crim. Law. p. '233, vol. 1. margin.)
    Although tlie law upon which this indictment is founded (Hart. Dig., art. 386) does'not specify, in terms, that “knowledge” is requisite of the fact that any tree or other allowed landmark is such, to constitute the offense, yet, we think, we can safely rely upon the general principles of “certainty” and “intent ” necessary to make it good in law. (Archbald’s Crim. Pleading, pp. 46, 40a.)
   Wheeler, J.

Whether the alleged landmarks were such, and bore the marks necessary to identify and constitute them landmarks, was matter of evidence; and it is never necessary to aver in an indictment mere matter of evidence, unless it alters the offense, for if so, as has been said, “-it would make the indictment as long as the evidonce.” (1 Chit. C. L., 231.)

“If notice,” it is said, “be necessary to raise the duty which the “ defendant is alleged to have broken, it should, of course, be averred; but “ where knowledge must be presumed, and the event lies alike in the knowledge of all men, it is never necessary either to state or prove it.” (Ib., 321, 322.) “ So if a request or demand is necessary to complete the offense, it must “bo stated.” (Ib.) But in this case there was no necessity of notice to raise the duly to respect allowed landmarks. Such landmarks are supposed to be alike open to tiro observation and knowledge of all men, and if a man destroy them it must be presumed to have been done knowingly and intentionally. If this was not so done, but was through inadvertence, accident, or mistake, that would be matter of defense, which'must come from tlie defendant, and need not be anticipated or stated in tlie indictment.

It is a general rule that, where an e'vil -intent accompanying an act is neces-to constitute such acta crime, tlie intent must he alleged in the indictment and proved; But where the act is in itself unlawful an evil intent will he presumed, and need not bo averred, and if averred is a mere formal allegation, which need not be proved by extrinsic evidence. (Id., 234.) And it is a general rule that in indictments for offenses created by statute, it is sufficient to follow tlie exact words of the statute in describing the offense. There is an. exception to this rule where tlie statute uses generic terms, in which case it is necessary to state the species according to the truth of the case, aud where the subject of the indictment cannot be brought within tlie meaning- of the statute without the aid of extrinsic evidence, it is necessary,- besides charging- the offense in the words of the statute, to aver such facts and circumstances as may be necessary to bring the matter within the meaning- of it. (Arehibold’s C. Pl, 46, 47; Bush v. The Republic, 1 Tex. R., 455; Burch v. The Republic, Id., 608.) The present ease, however, does not come within these exceptions to tlie general rule. It was sufficient in describing tlie offense to pursue tlie words of the statute creating it, and this having been done, the indictment is sufficient to put tlie accused on liis defense. The judgment must therefore he reversed and the ease remanded for further proceedings.

Tlie motion to dismiss in this case for the want of an assignment of errors was refused, as coming too late after the ease had been submitted on briefs on tlie merits.

Reversed and remanded.  