Wright v. State, 136 Ala. 139

Wright v. State

136 Ala. 139 | Ala. | 1902

DOWDELL, J.

The prosecution in this case was commenced on affidavit made before a justice of the *145peace and returnable to the county court of Bibb county, where the defendant was tried and convicted for a violation of section 5606 of the Code. The defendant demurred to the affidavit but the record proper fails to show any judgment by the court on the demurrer. The bill of exceptions recites that the demurrer was overruled by the court but under the settled practice of this court judgment of the trial court on the pleadings cannot be reviewed here when shown only by the bill of exceptions. — Beek v. West, 91 Ala. 312; Powell v. Henry, 96 Ala. 412; Heard v. Hicks, 101 Ala. 102.

In prosecutions begun by affidavit it is not error for the court to allow the affidavit to be amended so as to perfect it or meet any supposed defects. But whether properly allowed ,or not in the present case we need not say, since the ruling of the court below on this question is not shown by the record proper. Appearing here only in the bill of exceptions, the ruling of tlie court cannot be reviewed. — Simpson v. State, 111 Ala. 6; U. S. v. Weir, 96 Ala. 396.

The witness 'Campbell testified that he and J. G. Moore were in the possession of the premises trespassed on. The defendant objected to this testimony on the ground that the land trespassed upon was not shown to be any part of the curtilage of the dwelling; his insis-tance being that premises mean the curtilage and nothing more, and that as the 'affidavit or complaint charges a trespass on the premises, it is not permissible to show a trespass on other land than that within the curtilage of the dwelling. This contention is without merit. The word “premises” in the statute means any real estate. — Sandy v. State, 60 Ala. 18.

There was no error in overruling the objection to the statement of the witness Campbell, that he and J. G.' Moore were in possession of the land, on the ground that it was an opinion or conclusion of the witness. — Higdon v. Kennemer, 112 Ala. 351. Possession is a collective fact, and not an opinion or conclusion, and it was competent for the witness to state that he was in possession. It was open for the defendant on a cross-examination to inquire into the particulars going to make *146up the collective part of possession, or to show by suck cross-examination an absence of the particulars necessary to constitute such collective fact.

Whether or not the prosecution was commenced within sixty days after notice given the defendant to leave the premises, was a fact to which it was competent for the witness to testify, and there was no> error in overruling the defendant’s objection to this evidence.

'The prosecutors and owners being in actual possession of tire land, although other parties were also on it, who were there by permission of the owners, and as the evidence shows without paying rent and with the understanding to leave whenever the owner told them to do so, notice to the defendant was properly given by the owners. — Code, § 5606] Garrett v. Sewell, 108 Ala. 521, 525; Sewell v. State, 82 Ala. 57.

The defendant moved the court to exclude all of the evidence of the witness Moore, which motion the coui’t properly overruled. Some of the evidence of this witness was unquestionably admissible, and if any part of it was illegal and objectionable it was the duty of the defendant to have pointed out in his motion the illegal and objectionable. It is never incumbent on the court on a general objection to evidence to separate the illegal from the legal; this duty rests upon the party objecting. The defendant having called for a part of the conversation had in a conference between Moore and defendant’s attorney Clements, it was competent for the State to call for all that was said in such conversation.

Charge one, requested by the defendant is'based on the theory that the word “premises” is confined and limited in its meaning to the dwelling and curtilage. As stated above, this is not the meaning of the word as employed in the statute. This charge was properly refused. Sandy v. State, 60 Ala. 18.

If the prosecutors were in tire actual possession of the land claiming to own the same when the warning was given the defendant, it is no defense that the defendant had the superior title. Charges two and three *147were, therefore, properly refused. — Lawson v. State, 100 Ala. 7.

There being evidence of the guilt of the defendant, charge four, which was the general affirmative charge, was properly refused.

If after entering on the land, the defendant on being warned to leave, refused to do so, without legal excuse or good cause, he would be guilty under the statute, § 5606 of the Code. Charge five, for this reason, was bad, and was properly refused. Charge six is obscure and unintelligible, and if for no other reason, was properly refused on this ground. Charge seven is had for the reason stated as to charge two and three.

We find no error in the record, and. the judgment will he affirmed.