21 So.2d 558 (Ala.App. 1945), 1 Div. 479, Marsh v. State

Docket Nº:1 Div. 479.
Citation:21 So.2d 558, 32 Ala.App. 24
Party Name:MARSH v. STATE.
Case Date:January 09, 1945
Court:Alabama Court of Appeals
 
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Page 558

21 So.2d 558 (Ala.App. 1945)

32 Ala.App. 24

MARSH

v.

STATE.

1 Div. 479.

Alabama Court of Appeals

January 9, 1945

Rehearing Denied Feb. 13, 1945.

Page 559

D. R. Coley, Jr., of Mobile, Grover C. Powell, of Atlanta, Ga., Hayden C. Covington, of Brooklyn, N. Y., and Roy A. Swayze, of Arlington, Va., for appellant.

[32 Ala.App. 25] Wm. N. McQueen, Acting Atty. Gen., and John O. Harris and W. W. Callahan, Asst. Attys. Gen., for the State.

RICE, Judge.

There is a Statute of Alabama reading in pertinent part as follows, to-wit: 'Any person who, without legal cause or good excuse, enters * * * on the premises of another, after having been warned, within six months preceding, not to do so; or any person, who, having entered * * * 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 leave immediately on being ordered or requested to do so by the person in possession, his agent or representative, shall, on conviction, be fined not more than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three months.' Code 1940, Title 14, Section 426.

Appellant was convicted of a violation of the terms of the above Statute; the specific charge against her being that she 'without legal cause or good excuse and after having been warned within the past six months not to do so, entered upon the premises of the Gulf Shipbuilding Corporation, a Corporation, contrary to law and against the peace and dignity of the State of Alabama.'

She was tried before the Court, sitting without a jury, and assessed a fine of $50.

The material circumstances, as we will endeavor to state them from the record, are that the land upon which appellant entered, and was arrested, originally belonged to the Tennessee Land Company, a corporation. While in the possession of this Company it erected thereon what is described in the testimony as a 'business block.'

This 'business block' consisted of one building, divided by suitable partitions into several stores, or business places. It fronted toward a public highway, but the front was some 40 or 50 or 30 feet distant from the said highway.

In front of the 'business block,' running all the way across--some 250 feet--and parallel to the public highway, but upon the private property of the Tennessee Land Company, it had constructed a paved roadway. Between this paved roadway and the front of the 'business block,' there was a paved sidewalk constructed at the same time as, and as a part of, the said 'business block.' The paved roadway was separated from the public highway by an unpaved portion of the land of the Tennessee Land Company; and the paved sidewalk was separated from the paved roadway by a likewise unpaved strip of land.

All this was done more than twenty years before the beginning of this prosecution; but there is no dispute but that the Tennessee Land Company, and its successors in interest, throughout that time exercised full control over the paved sidewalk mentioned--the paved roadway being not now involved--as a part of its private property. The stores, or business places, in the so-called 'business block,' were rented separately to various and sundry parties during

Page 560

these years; and, of course, the paved sidewalk served, without objection on the part of the Tennessee Land Company and its successors in title, the customers of these establishments.

But the testimony is without dispute that throughout the time in question, the Tennessee Land Company and its successors paid the taxes upon and maintained control of the sidewalk in question, along with all its other private property--and that people going upon it for any other purpose than as a means of ingress and egress to and from the stores or business places mentioned were required to procure 'permits' from it or them.

It should perhaps be here noted that the property in question, including the sidewalk, was transferred by proper conveyances to the Gulf Shipbuilding Corporation prior to the time of the incidents leading to this appeal.

[32 Ala.App. 27] There is really no great dispute as to the facts in the case.

Appellant, admittedly, or without conflict in the testimony, was duly and properly warned, 'within six months preceding' her arrest not to go upon the premises of the Gulf Shipbuilding Corporation.

She did so go upon them--that is, the sidewalk, above, which we will later a little more clearly demonstrate was the 'premises' of said corporation, in the sense of the Statute quoted at the beginning of this opinion--and was there arrested on December 24, 1943, on the charge for which she was convicted--giving rise to this appeal.

Appellant is represented here by...

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