47 So. 338 | Ala. | 1908
The appellant was convicted of the offense of “trespass after warning.” The prosecutor does not show any actual possession, but claims constructive possession, by reason of the fact that he had received a conveyance of the land from another party,
If the holder of the legal title enters under the same, “no subsequent constructive possession, even under col- or of title, could overlap his possession.” — Chastang v. Chastang, 141 Ala. 451, 463, 37 South. 799, 803 (109 Am. St. Rep. 45). So, even if the act of the prosecutor in extending his fence could he construed into the taking of possession under his deed, his constructive possession under his deed could not overlap the previous constructive possession in the holder of the legal title. The possession of the land in question, was then in May, and not in the prosecutor. Consequently the defendant could not be convicted for trespassing on the possession of the prosecutor.
The general charge in favor of the defendant, which was requested in writing, should have been given. The judgment of the court is reversed, and a judgment will he here rendered discharging the appellant.
Reversed and rendered.