Marsh v. State

• Decision Date: 09 January 1945
• Docket Number: 1 Div. 479.
• Citation: 32 Ala.App. 24,21 So.2d 558
• Parties: MARSH v. STATE.
• Court: Alabama Court of Appeals

21 So.2d 558

32 Ala.App. 24

MARSH v. STATE.

1 Div. 479.

Alabama Court of Appeals

January 9, 1945

Rehearing Denied Feb. 13, 1945.

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.

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 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.

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 numerous counsel, who have, jointly, filed an exceedingly voluminous brief in her behalf. They would have us consider a wide variety of questions in reaching a decision in the case.

Among many other things, counsel say: 'Petitioner (appellant) Grace Marsh is an ordained minister of the gospel, and as such is one of Jehovah's witnesses. The Watchtower Bible and Tract society, under direction of which she carried forward her ministerial activities, issued to her a certificate of ordination and identification, which was introduced in evidence * * *. Therein it is explained that Jehovah's witnesses are true followers of Christ Jesus and are dedicated to the promulgation of His teachings among the people of good-will toward Almighty God. This is done in the Apostolic manner as shown in the following scriptures cited from the Bible:

"And how I * * * have taught you publickly, and from house to house. Acts 20:20.

"Go ye into all the world, and preach the gospel to every creature.' Mark 16:15.

"And he (Jesus) went round about the villages, teaching.' Mark 6:6.

"And it came to pass afterward, that he went throughout every city and village, preaching and shewing the glad tidings of the Kingdom of God: and the twelve were with him.' Luke 8:1.

'Petitioner (appellant) said that she devoted her entire life to this work. In addition to orally teaching the people concerning the Kingdom of God, she used various printed publications, such as books, booklets and magazines. Such she distributed to 'any person of good-will who desires to read them.' To the end that this may be accomplished in an orderly manner, the City of Mobile and surrounding communities had been divided up by Jehovah's witnesses into territory sections, and each minister given a section to serve.

'Chickasaw, Alabama, a suburb of Mobile, lies in the territory assigned to petitioner (appellant). * * * The place was owned and developed by the Tennessee Land Company.'

We have already stated, hereinabove, of what the relevant development--the 'business block'--consisted.

We continue with our quotation from appellant's brief, to-wit:

'In 1941 the Tennessee Land Company sold its property, including the business block in question, to the Chickasaw Development Company, which in turn was shortly absorbed into the Gulf Shipbuilding Corporation, the present owner.

'Representatives of both the present and former owners of the business block declared (and nobody disputed them, we interpolate) that there had never been an express dedication of the streets and sidewalks to the public use and that the owners had always paid taxes on the property thus being used.'

However, appellant's counsel say: 'The deed conveying the property in question to its present owner shows that there was a recognized dedication of the 'streets, alleys and public roads.' (Because) in the warranty section of the deed, the Grantor (Chickasaw Development Co. Inc.) put the following limitation: '* * * provided however that the warranties herein contained do not apply to areas or property located in any of the streets, alleys or public roads * * * and as to said streets, alleys, public roads * * * this instrument shall constitute a quit-claim deed only.'' (Italics supplied by us.)

And then counsel say: 'Furthermore, the evidence is undisputed that the side-walks have never been restricted for the general, orderly use of the public, peddling excepted.' (Italics added by us.)

Appellant's counsel then quote the Tennessee Land Company's Manager who said he 'never stopped anybody from using it (the sidewalk, where appellant was arrested, we interpolate) so long as they used it in an orderly and proper manner and were not there for any gainful purpose.'

Counsel then say: 'For approximately six months prior to December 24th, 1943, Grace Marsh (this appellant) * * * had been engaged in the distribution of printed Bible literature to the people living in the Chickasaw development. It was her custom particularly to engage in the distribution of the Watchtower and Consolation magazines each Saturday afternoon on the sidewalk in front of the business block. This she would do by standing on the outer edge of the sidewalk near the curb displaying the magazines to the people passing up and down, at the same time calling out in moderate tones, 'Watchtower, announcing Jehovah's Kingdom.' She insisted that the magazines were not for sale and that she was not selling them, but she explained that she offered this literature freely to all persons with whom she came in contact, giving such publications to those who desired to read and study same. The persons receiving this literature were given opportunity to contribute a small sum to assist in printing like literature and to further the charitable work in which she was engaged. But if the person was too poor or otherwise unable to contribute anything, and desired to have literature, she said she let such have the magazines without receiving any contribution.'

It is then set out in appellant's brief...