Goldsmith v. State

• Decision Date: 21 February 1889
• Parties: GOLDSMITH v. STATE.
• Court: Alabama Supreme Court

5 So. 480

86 Ala. 55

GOLDSMITH v. STATE.

Supreme Court of Alabama

February 21, 1889

Appeal from circuit court, Crenshaw county; JOHN P. HUBBARD, Judge. Indictment for trespass after warning.

John Gamble, for appellant.

T N. McClellan, Atty. Gen., for the State.

STONE C.J.

The prosecution in this case was instituted under section 3874, Code 1886,-a purely statutory offense. It declares that "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, must, on conviction," etc.

It Watson v. State, 63 Ala. 19, this court said: "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. *** But no mere claim of title, however sincerely made, can justify or excuse the trespass if it is committed after warning."

In McLeod v. McLeod, 73 Ala. 42, it was said: "If the plaintiffs were in actual possession of any portion of the land, claiming title thereto, either adverse or permissive, as against the appellant, they could not be lawfully prosecuted for continuing their occupancy after a warning not to do so. The statute does not cover cases of this character." Bohannon v. State, Id. 47; Matthews v. State, 81 Ala. 66, 1 South. Rep. 43. "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." Owens v. State, 74 Ala. 401.

It has been contended for defendant, and the testimony supported the contention, that Wilkinson held a mortgage on the lands on which the trespass is alleged to have been committed; that the debt secured by the mortgage was past due and unpaid that the law-day of the mortgage was past; that Goldsmith was Wilkinson's agent in entering upon the land; that he entered peaceably, and without tumult or disturbance of the peace; and that, therefore, he did only what he was authorized by the mortgage to do, or, at least, what he in good faith believed he was authorized to do. We will not consider this aspect of the case. Street v. Sinclair, 71 Ala. 110.

There is no controversy on the following propositions: The defendant was on the premises, the land, when he received the warning, and after he left the premises there is no proof that he ever returned. He did not enter the dwelling, nor the inclosure around it. The prosecutor testified that after he gave the warning defendant went into the field, and aided in gathering the corn. Defendant denied this, and testified that he did not go inside of any inclosure. This was the only conflict in the testimony.

We think the testimony, under any interpretation, failed to make a case within the statute. There must be a warning first, and an entry afterwards.

One already in possession, even though a trespasser, or there by that implied permission which obtains in society, cannot, by a warning then given, be converted into a violator of the...