Edgar v. State

• Citation: 47 So. 295,156 Ala. 147
• Parties: EDGAR v. STATE.
• Decision Date: 30 June 1908
• Court: Supreme Court of Alabama

47 So. 295

156 Ala. 147

EDGAR v. STATE.

Supreme Court of Alabama

June 30, 1908

Appeal from City Court of Andalusia; B. H. Lewis, Judge.

Dave Edgar was convicted of maliciously destroying a fence, and he appeals. Reversed and remanded.

McClellan J., dissenting.

Defendant and one Mauldin owned adjoining lands. Mauldin constructed a rail fence between the lands, which was burned, and for the burning of which defendant is prosecuted in this action. While Mauldin was upon the witness stand, defendant asked the witness if it was not a fact that the land run by Acree and Miller was a compromise line, and agreed to by witness and defendant as a compromise after the fence was burned. Defendant also asked witness if the fence was built on his own land, and also if it were not a fact that the fence was on defendant's land. The court sustained objections to each of these questions, and defendant accepted. Witness was asked if he knew the line dividing defendant's line from that of Mauldin. The bill of exception recites that the state objected to the question, and the court announced the following ruling: "If Mauldin built a fence on the line which had been surveyed, and as he thought at the time to be the true line, and subsequently the line was surveyed again and by said survey the fence was on defendant's land defendant was liable if he destroyed the fence." And to this ruling the defendant accepted. All testimony in reference to the survey and land lines run since the burning of the fence was excluded on motion of the state.

The court charged the jury as follows:

"I charge you, gentlemen of the jury, as a matter of law, that to throw down a fence is to destroy it. Yes; the court will hold that to throw down a fence and to 'scatter it from hell to breakfast,' as and in the manner testified to by some of the witnesses, is a destruction of it within the meaning of the law, and that if the jury believe beyond a reasonable doubt that defendant destroyed this fence by throwing it down or burning it, as charged, they should find him guilty, although a portion of it is shown to be a partition fence, if they should find that it was a partition fence."

The following charges were refused to the defendant:

"(1) I charge you, gentlemen of the jury, that if you believe, from all the evidence, that the fence alleged to have been destroyed was on the land of defendant you should find defendant not guilty.

"(2) I charge you that if you believe, from all the evidence, that the fence alleged to have been destroyed was erected on the land it separated, the land of defendant from the land of Mauldin, you should find defendant not guilty.

"(3) If you believe, from all the evidence, that Mauldin erected the fence alleged to have been destroyed on defendant's land, even though he believed at the time that he was erecting it on his own land, you should acquit defendant.

"(4) If you believe, from all the evidence, that Mauldin erected the fence alleged to have been destroyed on defendant's land, even though he believed at the time that he was erecting it on the line separating his own land from that of defendant, you should acquit the defendant."

"(6) If you find, from the evidence, that part of the rails that went into the fence in question were taken from an old fence on defendant's land, then defendant had a right in the fence, and you should acquit him.

"(7) Affirmative charge.

"(A) If you believe, from the evidence, that the fence said to have been destroyed was a partition fence, you must acquit the defendant.

"(B) If you believe, from the evidence, that the fence said to have been destroyed was the old fence torn down by Mauldin and again erected by him on the land of defendant, even though new rails were added, you should acquit him.

"(C) If you believe, from the evidence, that the fence said to have been destroyed was on the land of defendant, you should acquit him.

"(D) If you believe, from the evidence, that the old fence testified about was moved by Mauldin and again erected by him on the line testified by Acree, then you should acquit him.

"(E) I charge you that the fence said to have been destroyed was a fixture, and belonged to the owner of the soil upon which it was located."

"(H) If you believe, from the evidence, that defendant was the owner of the fence which was burned at the time of Acree's survey, and that said fence was on the line, and on the side of the old line testified about on which defendant's land was and is, and on or near the original or old line testified about, then and in that event, if from Acree's line it was ascertained and determined that it was on Mauldin's land, you must find defendant not guilty."

Jones & Jones, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

DOWDELL J.

The defendant, appellant here, was tried and convicted in the court below for a violation of section 5624 of the Criminal Code of 1896, which section reads as follows: "Any person, who unlawfully, maliciously, or negligently destroys, throws down, or breaks any fence or inclosure of another, and fails immediately to rebuild or repair the same, must, on conviction, be fined not less than twenty, nor more than five hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than six months; and the fine goes to the injured party." This statute was construed by this court in the case of Wheeler v. State, 109 Ala. 56, 19 So. 993, wherein it was said by the court, speaking through Brickell, C.J.: "A fence, whether there be a permanent annexation to the soil, or if it be of rails so arranged as to constitute an inclosure, is a fixture, a part of the land, and passing with the freehold. Mitchell v. Billingsley, 17 Ala. 391; Smith v. Carroll, 4 G. Greene (Iowa) 146; Seymour v. Watson, 5 Blackf. (Ind.) 555, 36 Am. Dec. 556. The purpose of the statute is the protection of the owner of the soil, or of tenants or others having possession under him, against trespasses, which prior to the statute were redressed only by a civil action for the recovery of damages. The destruction of a fence by its owner, or the failure to rebuild or repair it, is not within the purview of the statute. The pivotal inquiry in the present case was whether the fence was on the land of the prosecutor or of the defendant. If on the lands of the defendant, there could not, in any event, be a conviction. If it was erected by the prosecutor in ignorance of the true line, the erection was at his own peril, and he was not entitled to remove it when the true line was ascertained."

The case of Wheeler v. State, supra, was followed and approved by this court in the later case of Boyett v. State, 132 Ala. 23, 31 So. 551. Hill v. State,

104 Ala. 64, 16 So. 114, and Wallace v. State, 124 Ala. 87, 26 So 932, as supposed by the Attorney General, and...