Given, J.-
1 *292 *28I. We have the single question whether 1ho court erred in holding that the- cheek was not admissible in evidence for the reason that it was stamped with a twoeent proprietary United States revenue stamp, instead of a two-cent documentary stamp, as required by section 6, and schedule A, chapter 448, 30 United States Statutes. Section J of said act provides that if any person or persons shall make, sign, or issue, or cause to- be-made, signed, or issued, any instrument, document, or paper required to be stamped without the same being duly stamped, such person or persons shall be punished, “and such instrument, document, or paper, as aforesaid, shall not be competent evidence in any court.” Section 10 provides a penalty for making, signing, issuing, accepting, or paying instruments required to bo stamped without the same being duly-stamped, “with design to evade the payment of any stamp tax.” Section 13 provides for stamping instruments not duly *29stamped at the time of making, by reason of accident, mistake, inadvertence, or necessity, and without any design to defraud the United States of the stamp, or to delay the payment thereof.. Section 14 provides that no instrument, paper, or document required by law to be stamped, which has been signed or issued without being stamped or with a deficient stamp, nor any copy thereof, “shall be recorded or admitted or used as evidence in any court until a legal stamp, or stamps, denoting the amount of tax, shall have been affixed thereto as prescribed by law.” Section 16 is as follows: “That no instrument, paper, or document required by law to be stamped shall bo deemed or held invalid and of no effect for want of a particular kind or description of stamp designated for and denoting the tax charged on any such instrument, paper, or document, provided a legal documentary stamp, or stamps, denoting a tax of equal amount, shall have been duly affixed and used thereon.” This check purports to •create a pecuniary demand, and, although not stamped as required, it might, if it is genuine, be duly stamped, under the provisions of section 13. This being true, to falsely make, alter, or forge it with intent to defraud would be forgery, and to utter it as true knowing it to be forged, a crime, under Code, sections 4853; 4854.
There is conflict in the decisions of the state courts as to whether this statutory rule of evidence will be followed in the state courts. In Mitchell v. Insurance Co., 32 Iowa, 422, it was contended that the court below erred in admitting in evidence a certain assignment, .for the reason that the same was insufficiently stamped. This court, following the decision of the supreme court of the United States in Campbell v. Wilcox, 10 Wall. 421 (19 L. Ed. 973), said: “As it does not appear that there was any fraudulent intent in the omission to properly stamp the assignment referred to, it follows that the court did not err in admitting it in evidence,” — thereby overruling Hugus v. Strickler, 19 Iowa, 414, and like prior decisions.
*303 As we view it, the question under consideration docs not rest upon whether this statutory rule of evidence will be followed in the state courts, nor whether it only excludes as evidence instruments not properly stamped when there was an -intent to defraud. Our inquiry is whether the statute applies to criminal prosecutions like .this. The purpose of the-act, and of the penalties therein prescribed, is to> insure to the government the tax provided. True and genuine instruments only arc required to be stamped, and it is these that the act declares shall be invalid, and not rcceivable in evidence, if "not properly stamped.- There is no requirement that false and forged instruments shall or may be stamped, nor was it intended that the rule of evidence prescribed should apply in prosecutions for forging or uttering such instruments. It will bo seen, by referring to Thomas v. State, 40 Tex. Cr. App. 562 (46 L. R. A. 454, and notes s. c. 51 S. W. Bep. 242), that the-general, if not the uniform, current of authorities, both English’ and’ American, is that the instrument alleged to be forged is admissible in evidence in prosecutions like this, whether or not stamped. We think the court erred in excluding the check, hut, as the defendant cannot again bo put on trial, the judgment of acquittal must stand. — Beversed.
Granger, O. J., not sitting.