57 So. 1017
Ala. Ct. App.
1912
PELHAM, J.

The appellant was tried and convicted for trespass after warning. The case was tried in the city court, before a jury, on 'an affidavit made before the clerk of the сourt by Lawson Mancil, charging the defendant with having trespassed on the premises of the affiant after having been warned within six months preceding not to do so.

Mancil and defendant wеre in possession of and owned adjoining lands; the defendant’s land lying west of Mancil’s. An “old line” had ‍​​‌​‌​‌‌​​‌​​‌​​‌‌‌​​‌‌‌‌​‌​‌​‌‌‌‌‌​​‌‌‌​​‌‌‌‌‌​‍been recognized as the dividing line; but the defendant, Hendley, had the county surveyor make аnother survey, and by this sur*110vey the “new line” was located some 40 yards east of the “old line.” The аlleged trespass was committed by Hendley going on a strip of woodland between the two lines and cutting timber. The evidence was in conflict about the establishment of the new line. Mancil testified that he received no notice of the survey, and did not know of it until afterwards. Thе evidence was also in conflict as to who was in possession of the'strip of land in question, and as to the notice having been given. The evidence for the state tended to show that the old line had been recognized by both of the parties; that Mancil was in pоssession of the premises in question; and that the requisite warning was given the defendant, who did not at that time claim to own or be in possession of the strip of land, hut that on the next day after receiving notice the defendant went upon the strip of land and cut and removed timbеr from it. The defendant introduced testimony tending to show ownership and possession of the striр of land on which the alleged trespass Avas committed.

The court’s rulings on the evidencе are free from error.- The question asked the prosecuting witness, Mancil, about the land he owned, and Avhere it AAras located Avas preliminary to the question leading up to' the proof by the witness of his possession of the premises on which the alleged trespаss ‍​​‌​‌​‌‌​​‌​​‌​​‌‌‌​​‌‌‌‌​‌​‌​‌‌‌‌‌​​‌‌‌​​‌‌‌‌‌​‍wias committed. The questions asked this AAdtness, having reference to the occasion оf the alleged trespass: “What was the defendant doing?” “What did you do then?” were capаble of eliciting legal evidence, and were properly admitted, as against the gеneral objection interposed by the defendant.—Washington v. State, 106 Ala. 58, 17 South. 546; Gunter v. State, 111 Ala. 23, 28, 20 South. 632, 56 Am. St. Rep. 17.

*111The defendant's motion to exclude the evidence was properly refused, as also the general charge requested- in writing by defеndant. It is true that, if the defendant had acquired actual possession of the strip under claim of ownership- before the notice not to trespass was given, his subsequent entry,' even thоugh a trespass, would be deemed a continuing trespass- under the possession previously acquired, -and not a re-entry after warning not to trespass, making him subject to this preseсution for a 'trespass after warning.—Brunson v. State, 140 Ala. 201, 37 South. 197. The evidence however, on this point was in conflict-, if, indeed, thе testimony offered in behalf of the defendant can be said to have shown an actuаl possession by him of the strip in controversy before the notice was given. The prosеcuting witness, Mancil, testified that the defendant made no claim to possession of the striр between the two lines ‍​​‌​‌​‌‌​​‌​​‌​​‌‌‌​​‌‌‌‌​‌​‌​‌‌‌‌‌​​‌‌‌​​‌‌‌‌‌​‍before he gave him the notice; but, on the contrary, that the defendant at that time recognized the old line and his (ManciPs) possession up- to that line. This witness further testified that he was in possession of the premises in controversy, having a fencе on the old line, both above and below the strip alleged to- have been trespаssed upon.

Charge No. 3 is confused and faulty in language. It uses t-lie word “defendant” where somе other word is intended — prosecuting witnéss, probably, it would seem; but, as written, the charge is not intelligible.

Charges A — 2, A- — 3, A — 5, and G are charges on the weight ‍​​‌​‌​‌‌​​‌​​‌​​‌‌‌​​‌‌‌‌​‌​‌​‌‌‌‌‌​​‌‌‌​​‌‌‌‌‌​‍of the evidence, and invade the province of the j^y.

Charge D does not predicate an actual possession of the premises by the defendant at the time notice was givеn, or possession under bona fide claim of ownership, claiming against Mancil, from whom thе notice pro*112ceedecl. As written, the charge is calculated to impress thе jury with the belief that the ‍​​‌​‌​‌‌​​‌​​‌​​‌‌‌​​‌‌‌‌​‌​‌​‌‌‌‌‌​​‌‌‌​​‌‌‌‌‌​‍defendant merely being on the land, cutting- timber:, would constitute a sufficient рossession.—Watson v. State, 63 Ala. 23; Brunson v. State, 140 Ala. 201, 37 South. 197.

Charge E is faulty for the same reasons as pointed out in discussing charge D. Given chаrge A — 1, as applicable to the evidence, substantially covers charges D and E, and is probably more favorable to the defendant than justifiable under the correct rules of law.

There being no error shown by the record, the case will be affirmed.

Affirmed.