The State vs. Marion Haynes. provide that the instrument should not be available for the purpose of recovering on it in a court of justice, but it might be received in evidence for a collateral purpose; and instances of this might occur under the sixth section of the statute, 31 Geo. III, by which persons drawing bills on unstamped paper, were chargeable with the duties; and also, under the tenth section of the same Act, by which they are made liable to a penalty of £20-in both of which cases, the note or bill must be used in evidence. That it was not necessary to constitute forgery, that the instrument should be available. That though a compulsory payment by course of law, could not have been enforced for want of the proper stamp, yet a man might be equally defrauded by reason of a voluntary payment being lost to him. That, if this were a sufficient defense, forged securities might be published on improper stamps with impunity, which would carry the mischief to an alarming extent. That the stamp itself, might be forged; and it would be a strange defense to admit in a court of justice, that, because a man had forged the stamp he ought to be excused for having forged the note itself; which would be setting up one fraud in order to protect him from the punishment due to another." If the defendant had affixed a genuine or a forged stamp to the instrument forged, there can be no doubt that his offense would be complete; but the affixing of such stamp could not affect the invalidity of the forged due bill; and the only effect would be to render the plan of the fraud a little more perfect and effectual. But the making of this instrument might operate to The State vs. Marion Haynes. the prejudice of Atkins' rights, by subjecting him to the penalty imposed by the statute for making and issuing unstamped instruments. But further: though the statute declares, that certain unstamped instruments shall be deemed invalid and of no effect, yet, such instruments are invalid only in a qualified sense; for the same section of the statute gives to any person, having an interest in an unstamped instrument, the right to appear before the collector, and upon payment of a certain penalty, to have the proper stamp affixed, with the effect to make the instrument valid as if stamped when made. It is not, therefore, necessary that the forged instrument shall be stamped when made and uttered, in order that it should operate to the injury of another's rights. It is further objected, that the second count of the indictment, which is for passing and transferring the forged due bill to Mary Caps, with intent to defraud S. T. Atkins, does not show the commission of any offense, and that it should have charged an intent to defraud Mary Caps, instead of S. T. Atkins. We do not see the force of this objection. The actual intent in the defendant's mind might have been to defraud either Atkins or Mary Caps, and the effect might have been to defraud either. If the intent was, as it might have been, that Atkins should be induced or compelled to pay the due-bill, it was a clear intent to defraud him, and we see no objection to charging the intent in that mode. The second count of the indictment charges that the defendant did offer to transfer and pass, dispose of, and The State vs. Marion Haynes. put off, and did then and there transfer and pass, to one Mary Caps, a certain false and forged due-bill. It is insisted, that this count charges two distinct and separate offenses-the offering to pass, and the passing, of the forged instrument. The words of the statue, under which this count is framed, are: "Whoever fraudulently passes, or transfers, or offers to pass or transfer, any forged paper," etc. We do not think that this statute creates two separate and distinct felonies. It merely declares, in effect, that the felony named shall be complete upon the offer to perform the felonious act, as well as upon its complete performance. Undoubtedly, a person might be properly indicted and convicted, for either the offer to pass, or for the passing. But the passing is merely the completion of the act of offering to pass, since the party could hardly pass the forged paper without offering to pass it. If the statute had declared these two acts to be distinct felonies, or had provided distinct punishments for them, the objection would have more weight. But the indictment in this case having stated that the defendant did pass the forged paper, is not vitiated by the unnecessary averment that he offered to pass it: 1 Archb. Cr. Law, 96; 1 Bishop Cr. Law, sec. 148. We think the indictment sufficient, and the judgment of the Circuit Court quashing it must be reversed, and the cause remanded to be proceeded in. The State vs. H. Manz. THE STATE vs. H. MANZ. 1. BUTCHERS. Tax on, for exercising the privilege. Liable to double tax for failure to take out license. Butchers, under the Code, were not required to take out license; but by section 5th, of the Act of 1868, they must obtain license before commencing their business; and by said Act are subject to the same rules, regulations and penalties, prescribed by sec. 704 of the Code, upon a failure to take out license. 2. SAME. Distress Warrant. Double tax for failing to take out license. The penalty of a double tax, to be collected by distress, being by the general law of the State imposed upon those who pursue certain avocations without the required license, exempts them from the operation of sec. 4596, of the Code, which is only applicable to violations of the law, where no penalty is imposed by the statute. 3. SAME. The Revenue Acts of 1865 and 1868, are amendatory Acts, and do not repeal the remedy by distress warrant. In enacting the amendatory statutes of 1865 and 1868, the Legislature intended to leave the remedy by distress warrant, against a person who presumes to exercise a privilege without a license, in force; and this remedy is applicable as well to privileges declared by the amendatory Acts, as to the privileges mentioned in the Code. 4. BUTCHERS. Required to take out license. Failure to, not a disdemeanor. Section 5, of An Act passed the 13th of March, 1868, requires all butchers whose business it is to sell meats at retail, etc., to take out a license. But a failure to do so, is not made a misdemeanor, by this Act. Section 16, of the Act declaring certain acts to be misdemeanors, does not declare all failures to take out license, to be misdemeanors. FROM HAMILTON. The defendant was indicted for failing to take out license as a butcher. At the June Term, 1869, on motion of the defendant, the indictment was quashed. The State appealed. Judge WILLIAM L. ADAMS, presiding. The State vs. H. Manz. THOS. H. COLDWELL, Attorney-general, for the State. WOOD, for the defendant. GEORGE ANDREWS, J., delivered the opinion of the Court. The indictment charges that the defendant, on the 1st day of June, 1868, and before and since that time, in, etc., was a butcher, engaged in selling meats by retail; and being such butcher, did fail and refuse, and still fails and refuses, to pay the privilege tax, due to the State and the County of Hamilton, required by law, in violation of the Act of March 13, 1868, p. 100. The Act recited in the indictment, provides, sec. 5, "That all persons engaged in the following pursuits, shall obtain an annual license from the Clerk of the County Court, and pay the taxes herein provided." Among those persons who by this section are required to take out license, are, "all butchers whose business it is to sell." The failure to take out such license, is nowhere declared to be a misdemeanor. This defendant is not indictable for the failure to take out a license. The Code, section 4596, declares, that, "When the performance of any act is prohibited by statute, and no penalty for the violation of such statute is imposed, the doing of such act is a misdemeanor." The Code, in various sections, prescribes the occupations, which it declares shall not be pursued without a license; and in section 704, declares, that, if any per |