| Ala. | Dec 15, 1883
— The declarations-.of Milton J. Owens, made' to McCall, the prosecutor, a few days before the alleged trespass, should not have been received. The defendant was not present, and it is not shown that he authorized them to be made, nor even that he was afterwards informed of the interview. Possibility, or even probability, that brothers thus circumstanced would act in concert, or that one would communicate to the other what had taken place, furnishes too uncertain a predicate for the admission of testimony, tending, at most, to prove conduct or conversation of persons, who are strangers to the record. They fall within the category of res inter alios actce. Nor does the fact that the two were in company when the trespass was committed, a few days afterwards, prove that a conspiracy had been formed before the conversation was had, so as to legalize the evidence, or bring it within the principle that co-conspirators are responsible for the. acts of each other.
2. The offense charged in this case is trespass after warning. Code of 1816, § 4419. It is objected, that the indictment is insufficient, in failing to describe the premises intended.to be
3. Warning implies notice; notice brought home to the knowledge of the party to be affected by it. The notice relied on in this case, consisted of written warnings, posted at three public places, not on the land, but in the neighborhood of it. To constitute such .a notice a sufficient warning, no matter where posted, it was incumbent on the prosecution to prove, by that measure of proof required in criminal prosecutions, that the notice was carried home to the defendant. Actual knowledge, not constructive notice, is what the law exacts. Without such knowledge, or actual notice, there can be no criminality. Notice, like most other facts, .may be proved by circumstantial evidence, if sufficiently convincing; and general notoriety in the neighborhood, if proved, may be considered by the jury on such inquiry; not conclusive, but an instrument of proof to be weighed. But, as we have said, constructive notice is not enough. ' There is a well recognized rule in civil cases, that proof of knowledge of a suggestive fact — one calculated to put the party on inquiry, and which, if followed up, would lead to discovery of the fact sought to be established — is equivalent to proof of actual notice of such material fact. — Crawford v. Kirksey, 55 Ala. 282" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/crawford-v-kirksey-6509407?utm_source=webapp" opinion_id="6509407">55 Ala. 282; Dudley v. Witter, 46 Ala. 664" court="Ala." date_filed="1871-06-15" href="https://app.midpage.ai/document/dudley-v-witter-6508142?utm_source=webapp" opinion_id="6508142">46 Ala. 664. We know of no authority, however, for applying this principle to criminal prosecutions.
4. We do not think the question of election between two proven acts, was raised in this case: There was but one act proved; an act somewhat continuous in its nature. A single entry, and moving from place to place on the lands of the prosecutor, on one and the same occasion, could not, it would seem, be divided into two acts of trespass.
What we have said above will show that some of the charges given by the court need to be modified, — specially those which relate to constructive notice. Notice — actual knowledge of the warning — must be.shown.
5. The third charge asked by defendant was rightly refused. If the fact of warning, and trespass within six months after-wards, were sufficiently proved, it was not necessary the State should go further, and prove the act was done without legal cause, or lawful excuse. This was defensive matter, the proof of which rested with the defendant, unless the testimony which proved the act, proved also the excuse. — Hadley v. The State, 55 Ala. 31" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/hadley-v-state-6509339?utm_source=webapp" opinion_id="6509339">55 Ala. 31.
Reversed and remanded. Let the accused remain in custody, until discharged by due course of law.