Hill v. State
| Citation | 104 Ala. 64,16 So. 114 |
| Parties | HILL v. STATE. |
| Decision Date | 09 August 1894 |
| Court | Supreme Court of Alabama |
Appeal from Hale county court; W. C. Christian, Judge.
Wiley Hill was convicted of maliciously throwing down a fence and failing to rebuild it, and appeals. Reversed.
The indictment under which the appellant in this case was tried and convicted charged that "Wiley Hill did unlawfully maliciously, or negligently throw down a fence, the property of Lige Monroe, alias Elijah Monroe, and did fail to immediately rebuild or replace the same."
The testimony on the part of the state tended to show that the prosecutor, Lige Monroe, had leased the premises from one Mrs. Poellnitz, and that, during said leasehold, he built the said fence or cow pen, which is alleged to have been broken or destroyed; that the defendant's cows were found in prosecutor's cotton field, and that prosecutor had said cows put in his cow pen; that the defendant went to the house of prosecutor, and demanded possession of said cows; that prosecutor's wife (the prosecutor being absent) refused to surrender said cows to defendant unless defendant would pay prosecutor all damages done to prosecutor's cotton field by defendant's cows; that defendant refused to pay any damages; that thereupon defendant went to the gap in said cow pen (there was no gate or bars), and pulled the fence down at said gap, and drove his cows out; that defendant did not repair or rebuild said fence or gap. The testimony for the defendant was in conflict with that of the state, and tended to show that the prosecutor's wife gave him permission to take the cows, and that the gap in the cow pen was down when he went to drive the cows out; and that the said fence or inclosure was not more than four feet high.
Among the other charges requested by the defendant, and to the refusal to give each of which he separately excepted, were the following: (2) "Unless the jury believe that the fence was at least five feet high, they must acquit the defendant." (a) "If the jury believe the evidence they must find the defendant not guilty."
A. M Tunstall, for appellant.
Wm. L Martin, Atty. Gen., for the State.
The defendant was indicted and convicted for a violation of section 3888 of the Criminal Code. Ownership of the fence was laid in Elijah Monroe. The evidence shows that the interest of Elijah Monroe was that of a tenant in possession, and holding by virtue of an unexpired lease. The evidence shows also that the fence was constructed of rails, and was about four feet high; and it was not controverted that the defendant threw the fence down, and that he failed "immediately to rebuild or repair the same." Section 1364 of the Civil Code, which defines a lawful fence to be five feet high, has no application when a person is indicted under section 3888 of the Criminal Code. The law imposes no duty upon any person to construct his fences five feet high. If the owner is satisfied to build his fences or make his inclosures less than five feet high, that fact does not license persons to enter upon his premises, and unlawfully throw them down, and leave them down. Fences or inclosures less than five feet high are within the meaning of section 3888 of the Criminal Code....
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Edgar v. State
... ... 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 ... [47 So. 297] 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 which two latter ... cases are relied on as sustaining the prosecution in the ... present case. Indeed, the case of Hill v. State, 104 ... Ala. 64, 16 So. 114, is ... ...
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Perry v. State
...this purpose) dissimilar statute, affords authority for the view above announced. Wallace's Case, 124 Ala. 87, 26 So. 932; Hill's Case, 104 Ala. 64, 16 So. 114. The bill exceptions shows that Earnest was in actual possession of the injured dwelling, and had been for many years. The defendan......
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Wheeler v. State
...requested, to the refusal of which exceptions were reserved. What we have said, in connection with the exposition of the statute, in Hill v. State, supra, will be a guidance for the court below on another trial. The judgment is reversed, and the cause remanded. The defendant will remain in ......
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Wallace v. State
... ... against the possession rather than against the ownership of ... land, the indictment in this case properly laid the fence in ... the person who was in possession, and the court properly ... refused to go into the inquiry whether a third person had ... title to the premises. Hill v. State, 104 Ala. 64, ... 16 So. 114 ... The ... witness W. D. Whetstone having testified for the defendant, ... for the purpose of showing that the fence in question was ... erected across a public road, that he first knew the road 25 ... years before; that it had been used ever ... ...