It appears from the evidence that the ownership or title to the land from which the timber was alleged to have been cut and carried away by defendant was in dispute between Birdwell and Dalton, both parties claiming under transfers executed to them about the same time by Adams, the original claimant, Dalton testified that he himself cut the timber in controversy, and sold it to defendant, who paid him for it.
Amongst other things the court charged the jury as follows: “If the jury believe from the evidence that defendant had notice of the dispute as to the title of the land, this would put him on his guard, and he would then be bound by the law to have the consent of the true owner; otherwise, you will find defendant guilty and assess a fine,” etc.
. This was excepted to, and a special instruction was asked and refused, which was couched in these words: “The defendant asks the court to charge the jury that, if they believe from the evidence that defendant purchased the timber mentioned in the-*166information herein, believing it to be the property of W. F. Dalton, the party from whom he purchased, that he purchased said ' timber in good faith; then and in that event he would not be guilty of knowingly carrying away timber from land not his own, in contemplation of law.”
This special instruction embraced the law on the vital point in the case, and announced it correctly, whilst the charge given, and which we have quoted, was erroneous and should not have been given. In several other particulars the charge given is obnoxious to criticism, but it is unnecessary to discuss them, as the objectionable features will not likely occur again.
There is a matter to which we call the attention of the clerk. In preparing the transcript he has omitted to send up as part of it the original affidavit or complaint upon which the infcrmation was based. This important paper should always accompany the information.
For errors in the charge of the court as indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Opinion delivered May 5, 1883.