Wheeler v. State
| Decision Date | 16 April 1896 |
| Parties | WHEELER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from criminal court, Pike county; William H. Parks, Judge.
The appellant, L. C. Wheeler, was indicted, tried, and convicted under a complaint and warrant of arrest charging him with maliciously, unlawfully, and negligently breaking down a fence, the property of Dixon Boutwell, and he appeals. Reversed.
Upon the trial of the cause, as is shown by the bill of exceptions, Dixon Boutwell, the prosecutor, was introduced as a witness, and testified that, before the making of the complaint under which the defendant was prosecuted, the defendant knocked down with his ax a fence, which was the property of the plaintiff and which was on land owned by the witness. It was shown, by the evidence, that the prosecutor and the defendant owned lands which were adjacent, and that there was a dispute between them as to the boundary line between their respective properties. The prosecutor further testified that it was agreed between him and the defendant that they should each select a man, and have the line between them run and staked out; that, in accordance with this agreement, one Lassiter and one Bundy were selected, and ran the line between them; and that the prosecutor, hearing no objections to the line so staked out, built his fence upon it. Upon the introduction of said Bundy as a witness, he testified that he ran the line between Boutwell and the defendant, and that, when he commenced to run the line, and stake it out, neither the defendant nor Lassiter, the other party agreed upon to run the line, were present; that he began at the stake pointed out by Sam Wheeler, a brother of the defendant; and that said stake was on the dividing line of Sam Wheeler and another party. The defendant objected to this testimony, and moved to exclude the statement of the witness as to what Sam Wheeler said about the line, on the ground that the defendant was not present and the evidence was not competent. The court overruled this objection refused to exclude the testimony, and to this ruling the defendant duly excepted. There was evidence that, after the line was run by Lassiter and Bundy, the defendant employed one Adams to run the line between him and Boutwell; that when said line was run, Boutwell was present; and that the line run by Adams showed that a part of the fence which Boutwell had built was on the property of the defendant. There was other evidence for the defendant tending to show that after the line was run by Lassiter and Bundy, the defendant requested them to retrace the line, and see that the stakes were properly placed, but that they declined to do so. The evidence for the defendant further tended to show that he requested Boutwell to remove that portion of his fence which was on the property of the defendant, and that, upon Boutwell refusing to do so, the defendant knocked it down. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence in the case, the court, in its general charge, among other things, instructed them as follows: (1) "If the jury believe that Adams surveyed this line for the purpose of straightening the line, and moved it so that the fence *** broken down, if so broken, was on defendant's land, that did not make Boutwell lose ownership of the fence, if it originally belonged to him, and the defendant would not be authorized to break down the fence in the manner testified to by the state witness." (2) "If the men who ran out the line under an agreement, if this was done, looked back, and could see from one end of the entire line to the other, and if it was staked, and if they could see, by the stakes, that the line they had staked was straight; if the jury believe that this was a substantial compliance with the contract, if there was such contract, to retrace or rerun the line, from the other end,-then it would not be necessary to actually retrace or run back, although the jury may believe that it was agreed to retrace or run the line back." (3) "If the jury believe, from the evidence, that Boutwell stood by and saw Adams make the survey, without saying anything, that does not make him agree to the line." The defendant separately excepted to each of these portions of the court's general charge to the jury.
Worthy, Foster & Carroll, for appellant.
Wm. C. Fitts, Atty. Gen. for the State.
The declaration of Sam Wheeler as to the location of a stake on a boundary line between his lands and the lands of another person, made in the absence of the defendant, if the fact was relevant, was mere hearsay, and inadmissible.
The presence of the prosecutor, when Adams, a surveyor, ran the line separating his lands from the lands of the defendant for the known purpose of ascertaining the true line, and whether any part of the fence, the...
To continue reading
Request your trial
-
Hill v. State
...third person, not made in the defendant's presence, are hearsay and inadmissible. Barker v. Coleman, 35 Ala. 221 (1859); Wheeler v. State, 109 Ala. 56, 19 So. 993 (1896). Ownership and possession of land must be proved by evidence as other facts are proved. M. C. Dixon Lumber Co., Inc. v. M......
-
Edgar v. State
...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 C.J.: "A fence, whether there be a permanent annexation to the soil, or if......
-
Groves v. Segars
...they are actual fixtures, the rails on the fence constructive, but both alike pass to the purchaser. * * *' And in Wheeler v. State, 109 Ala. 56, 59, 19 So. 993, 994, we find this statement of law in the court's '* * * A fence, whether there be a permanent annexation to the soil, or if it b......
-
Southern Ry. Co. v. Johnston
...(page 507, of 109 Ala. ), and "The court did not err in giving any of the charges requested by plaintiff" (page 508 of 109 Ala. % 19 So. 993 ). Even it be said that the Miller Case was modified by the Everett Case--as to whether or not it was we are not here concerned--so that it would requ......