Shaw v. State
| Decision Date | 09 February 1899 |
| Parties | SHAW v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Shelby county court; D. R. McMillan, Judge.
Andrew J. Shaw was convicted of throwing down a fence belonging to another, and not rebuilding the same, and on appeal the judgment was affirmed. Defendant thereupon amended the record by certiorari, and moved for a rehearing. Rehearing granted and judgment reversed.
The prosecution in this case was commenced by an affidavit made by one W. P. Gilbert, charging that Andrew J. Shaw "did unlawfully, maliciously, or negligently destroy, throw down or break a fence or inclosure, and did fail to immediately repair or rebuild the same; the said fence being the property of affiant." The facts of the case relating to the claims of the defendant and of the prosecutor, Gilbert, to the contiguous lands, and the submission of their claims to arbitration and the award, are sufficiently stated in the opinion. It was shown by the evidence that, after the award was made by the arbitrators, W. P. Gilbert located his fence upon the line, which was supposed to be in accordance with the directions of said award, and that within a short time after the fence was so built the defendant threw down 36 panels of such fence, and failed to rebuild it. There was evidence introduced on the part of the defendant tending to show that the north end of said fence built by Gilbert was not joined to any fence or inclosure, and that said fence did not inclose any land.
Upon the introduction of all the evidence, the court, at the request of the state, gave to the jury the following written charge: "(1) If the jury believe beyond a reasonable doubt from the evidence that there was a dispute between Gilbert and the defendant as to where the line between them was, and that they agreed to leave it to arbitrators, and the arbitrators established the Christian line as the true line and that in accordance with the decision the defendant moved his fence to his side of the line, and Gilbert built his fence on his side of the line, then each party owned to the Christian line; and if they further so believe that the defendant tore down Gilbert's said fence and left it down, in Shelby county, and within twelve months before the beginning of this prosecution, they should find the defendant guilty." The defendant duly excepted to the giving of this charge, and also separately excepted to the court's refusal to give each of the following charges requested by him: "(2) The court instructs the jury that, if there is a probability of the defendant's innocence, they will find the defendant not guilty." From a judgment of conviction assessing a fine of $25, the defendant prosecutes the present appeal.
W. S. Cary and W. F. Thetford, for appellant.
Chas. G. Brown, Atty. Gen., for the State.
Defendant owned the S.W. 1/4 of the N.E. 1/4 of a section of land, and W. P. Gilbert owned the adjoining S.E. 1/4 of N.W. 1/4 of same section. Neither party claimed to own beyond the true line dividing his legal subdivision of the section from the other; but, that line being unascertained and in dispute, they had surveys made by the county surveyor, one Christian, who marked a surveyed line known as the "Christian Line." The survey was not satisfactory to the parties, and they submitted the ascertainment of the line to five persons as arbitrators, who acted as such, and made an award in writing establishing the Christian line as the true line of division, and containing the following provision: "Said A. J. Shaw is to move all his fencing on his land six feet inside of said line within 30 days; also the said W. P. Gilbert shall build all his fencing six feet inside of said line for the purpose of giving twelve feet for road or passway." The award was signed by the arbitrators, and also by defendant and Gilbert. Defendant's fence, which before the award had stood on Gilbert's side of the line, was after the award moved by him to his side of the line, and Gilbert thereupon built a fence on his side. The evidence was conflicting as to whether the fences encroached upon the line and roadway, that of the state negativing such encroachment on the part of Gilbert, while the defendant's evidence tended to show that Gilbert's fence at the point where the fence was torn down was built so that it touched a tree on the opposite of which was a blaze indicating the Christian line.
The arbitration appears to have been without any written submission, and, not conforming to the requirements of the statutory...
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