| Ala. | May 21, 1908
H. M. Byers, as is shown, was the superintendent of the railway company. If he, as such agent, warned the defendant not to enter on the lands of the company, he had authority to warn persons not to trespass on the company’s property. The company must act through its agents, and a general superintendent of the company would, by virtue of being such superintendent, act within the scope of such superintendence in giving a warning to any one not to trespass. Section 5606, Cr. Code 1896. The superintendent was, by virtue of his office, authorized to instruct Bennett to give the warning to defendant; therefore the objection to the solicitor’s question which sought to prove such instructions, was properly overruled.
If the premises are rented to another, and the relation of landlord and tenant exists, the tenant is entitled to the possession and the landlord cannot maintain trespass for an entry thereon, and a warning by him not to trespass is not sufficient.- — Sewell v. State, 82 Ala. 58, 2 South, 622; Matthews v. State, 81 Ala. 66" court="Ala." date_filed="1886-12-15" href="https://app.midpage.ai/document/matthews-v-state-6512602?utm_source=webapp" opinion_id="6512602">81 Ala. 66, 1 South. 43.
The objection to the question by the defendant, “State whether or not the open space in front of the post office and the row of houses where Tilton lived was not used by the public at will?” was properly sustained. It does not appear with sufficient clearness that the space referred to was the space in respect to which the warning was given or where the defendant was arrested. For the same reasons, the other questions propounded to the witness, as to there being a show on the grounds of the company, or a flying-jenny thereon, constituting exceptions 3, 4, 5, and 6, as noted on the margin, were properly disallowed.
The questions by the solicitor, to the witness, Mrs. Til-ton, constituting exceptions 7 and 8, as is shown, were not answered, and if the objections to them, by the defendant, were improperly overruled, it was error without injury.
The charge given by the court at the request of the solicitor was properly given.
The first refused charge, requested by defendant, asserts no proposition of law and was properly refused.
Charge 3, requested by defendant, was misleading, in that it hypothesized a special authority from the company to the superintendent, Byers, to warn defendant, although he was the general superintendent. Further
The fourth requested charge was calculated to mislead the jury, if it was not also abstract.
There is no evidence that the unconditional possession of the inclosure, referred to in the sixth charge, had been delivered to the United. States for postoffice purposes, and that the government was in actual possession of the same; and the charge was also abstract.
The second and fifth requested charges by defendant were properly refused — the former being calculated to mislead, in the use of the word “exclusive,” while the latter is positively bad, in placing the burden of proof on the state to show that defendant had no legal excuse.
No error being shown, the judgment is affirmed.
Affirmed.