Brunson v. State

• Decision Date: 19 May 1904
• Parties: BRUNSON v. STATE.
• Court: Alabama Supreme Court

37 So. 197

140 Ala. 201

BRUNSON v. STATE.

Supreme Court of Alabama

May 19, 1904

Appeal from City Court of Mobile; O. J. Semmes, Judge.

Charles Brunson was convicted of trespass after warning, and appeals. Reversed.

The defendant requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same as asked: "If the jury believe from the evidence that the defendant, after receiving the warning, did not go beyond the limit of land he had taken actual possession of before he got the warning then the jury must find the defendant not guilty."

Fitts &amp Stoutz, for appellant.

Massey Wilson, Atty. Gen., and Jas. H. Webb, for the State.

DOWDELL J.

The prosecutor and defendant were proprietors of adjacent lands. The prosecution was commenced under section 5606 of the Criminal Code of 1896, which fixes a punishment for trespass after warning. This statute embraces two separate and distinct offenses under the common designation of "trespass after warning"; or, in other words the offense of trespass after warning may be committed in two different and distinct ways: First, where the defendant, "without legal cause or good excuse, enters into the dwelling house, or on the premises of another, after having been warned, within six months preceding, not to do so"; second, where the defendant, "having entered into the dwelling house or 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 immediately leave on being ordered or requested to do so by the person in possession, his agent or representative." This latter provision, contained above under the second head, was not embraced in section 3874 of the Code of 1886; that statute denouncing only the entering on the premises after warning given not to do so. This section was amended by an act approved December 3, 1896 (Sess. Acts, 1896-97, p. 34), by incorporating in the statute the said second provision set out; and as thus amended was brought forward and adopted into the present Code as section 5606. Prior to this amendment, and under the statute as it stood in the Code of 1886, it was decided by this court that a prosecution could not be sustained for trespass after warning where the defendant had already entered upon the premises and was in possession before any warning given him not to do so. In Watson v. State, 63 Ala. 23, it was said: "The indictment cannot be supported if, when the notice or warning was given, the defendant had actual possession of the premises, claiming title thereto, or claiming to hold them against Acree, from whom the notice proceeded. The statute is intended for the protection of the possession of real estate against the entry of intruders or trespassers; and it cannot be made to serve all the purposes of an action of trespass quare clausum fregit, nor converted into an action of ejectment, in which the title and right of possession may be determined. A wrongdoer in actual possession, though the constructive possession may reside in him in whom the title is vested, cannot be warned off, and proceeded against under the statute." See, also, McLeod v. McLeod, 73 Ala. 42; Bohannon v. State, 73 Ala. 47; Matthews v. State, 81 Ala. 66, 1 So. 43; Owens v. State, 74 Ala. 401; Goldsmith v. State, 86 Ala. 55, 5 So. 480.

The indictment in this case charged that the defendant "without legal cause or good excuse, entered on the premises of Andrew Zimlich, after having been warned, within six months preceding, not to do so, against the peace," etc. Evidence of the refusal of the defendant, after having entered on the premises, and before notice or warning not to do so, to leave said premises, is insufficient under the above authorities to sustain the indictment. But it is insisted...