Morrison v. State, 44 So. 43

Morrison v. State

44 So. 43 | Ala. | 1907

DENSON, J.

Section 5606 of the Code of 1896 pro-' vides that “any person, who, without legal cause or good excuse, enters into the dwelling house, or on the premises of another, after having been warned, within six months preceding, not to do so; or any person who, having entered into the dwelling house or on the premises of another without having been warned within six months not to do so, and fails or refuses, without legal cause or good excuse, to immediately leave on being ordered or requested to do so by the person in possession, his agent or representative, must on conviction,” etc. The affidavit on which the defendant was tried embraced both alternatives contained in the statute, aud the solicitor and court designated the alternatives as the first and second counts in the affidavit. An amendment was made to the second alternative, designated as the second count, and as- amended the offense as designated in the second alternative of the statute is charged.

The motion to quash the affidavit on the ground that it does not aver that the defendant is an individual, a partnership, or a corporation, was properly overruled. The defendant is designated as “E. 0. Morrison,” and this is a complete answer to the motion.

*120The record shows that the court, ex mero motu, gave the affirmative charge in favor of the defendant as to the second count in the affidavit, and yet wé find that the verdict of the jury is a finding of guilt under that count. This is somewhat anomalous, but no motion to set aside the verdict seems to have been made, and as the court accepted the verdict, and rendered judgment upon it, this of itself does not afford ground for error here.

While there is a verdict of guilt, an assessment of a fine of one cent, a judgment of guilt on the verdict, and an order of recovery of the fine and costs, there is no confession of judgment for the fine, nor sentence to hard labor to pay the fine and costs. Nevertheless the judgment of conviction will supjport the appeal, and we must consider the questions presented by the bill of exceptions.

H. M. Bryars testified for the state that he was, prior to the time the defendant was arrested, and at the time he Avas arrested, superintendent of the Tennessee Coal, Iron & Railroad Company, a corporation, and in charge ■of its property and lands; that he authorized W. R. Bennett to keep and Avarn trespassers off the company’s property and lands; that at this time the inclosure of the company surrounding its pay office was in possession of said company and used as a place to pay off the men; and that the defendant Avas not in the company’s employment at all. The defendant was at the pay win•doAV, inside of the inclosure surrounding the pay office, and Avas ordered by W. R. Bennett to leave, and defendant told Bennett he Avould not leave until he was made to do so. Upon the defendant’s refusal to leave the premises, Bennett, being a deputy sheriff, arrested the defendant for trespass. The venue was shoAvn.

The defendant was a butcher, and a large number of the company’s employes were customers of his, buying *121meats on credit. Defendant testified that on the day he was arrested for trespass a large number of the employes of the company were indebted to him, and that he was there making collections from the employes as they Avere paid off; that at the point Avhere defendant Avas arrested for the alleged trespass the public generally congregated and Avent, and collectors and the public generally had gone upon said premises as they saAV fit, for years past; that it Avas a public place. The defendant Asms then asked Avhat he was doing there at the time he Asms arrested. The court sustained the solicitor’s objection to the question. In this ruling there Avas no error. The defendant had already stated that he Avas there making collections from the employes as they Avere paid off. The same observations are applicable to the action of the court in sustaining the solicitor’s objection to the other question propounded to the defendant.

The charges of the defendant were asked in bulk. The second charge is abstract, and therefore the court committed no error in its refusal of the charges.

The jury, after retiring to consider the case, returned AA'ith the report that they could not agree, and stated to the court that they did not knoAV whether it was a public place or not. Thereupon the court told the jury that that was a question for them to decide, but that he was inclined to think it Avas not a public place as contemplated by the statute. To this statement by the court to the jury the defendant excepted. The undisputed evidence shows that the premises where the defendant Avas Avhen warned or ordered to leave, Avere those of the company, and were in the company’s possession, and used for a special purpose; and whether persons were permitted to go on the premises without invitation and without restraint, under such circumstances as would render the premises a public place, Avhile it might be a *122question which could not be determined as a matter of law by the court in a proper case, yet we cannot see what bearing the fact as to whether or not the place was public, even by usage, can have in respect to the guilt or innocence of the defendant. It was certainly not a public place, in the sense that the public had a right at all times, or at any time ,to go there and remain at will. The defendant had no business with the company, but was there in respect to his own private business; and notwithstanding people other than the company’s employes were in the habit of resorting there, they were mere licensees, and the company might at any time stop them from resorting there by giving the warning contemplated by the statute, or might exercise the right to order them away after arrival on the premises; and the fact that one, as did the defendant, might have a matter of business to be transacted with an employe of the defendant, would not constitute a legal excuse for not heeding the warming or order. — Holland's Case, 139 Ala. 120, 35 South. 1009. In this view of the case, it occurs to us that the remarks of the court were upon an immaterial matter, and could not have worked any injury to the defendant.

There is no reversible error in the record,' and the judgment is affirmed.

Affirmed.

Tyson, G. J., and Haralson and Simpson, JJ., concur.