Lawson v. State , 100 Ala. 7 ( 1893 )

McCLELLAN, J.

This is a prosecution for trespass after warning under section 3874 of the Code. The evidence is free from conflict to the effect that the prosecutor had actual possession of the land upon which the trespass' is alleged to have been committed at the time of the warning to defendant, and from thence to, and at, the time when the defendant. entered upon it, that he warned the defendant not to enter upon the land and that within six months after said warning and within twelve months before the commencement of the prosecution, and in Pike county, the defendant did enter upon said land. This evidence, none of which, as. we have indicated, was at all controverted, fully and perfectly made out the case for the State.—Bohannon v. State, 73 Ala. 47; Goldsmith v. State, 55 Ala. 57; 3 Brick. Dig. p. 251, § 1068.

8. The defendant, not denying or controverting in any way the prosecutor’s actual possession, was allowed to introduce evidence which tended to show that the prosecutor had at some past time admitted inferentially that the defendant had a superior claim to a certain quarter section adjoining that claimed by him and that upon a survey the land entered upon was found to be in the quarter section claimed by the defendant. The prosecutor’s actual possession however continued notwithstanding the survey and he continued to' claim and exercise the right to exclusive possession of the premises. This admission could not have justified defendant’s entry upon prosecutor’s actual' adverse possession against the warning subsequently given him by the prosecutor, and the defendant certainly got all he was entitled to because of it when the court confined its influence in ■ the case to the mitigation of punishment.

A perfect legal title in the defendant would not have justified his entry upon the land after warning under the facts of this case. The court did not err therefore in excluding the certificate of homestead entry offered by the defendant. Nor could the defendant have been prejudiced in respect of the punishment imposed by the jury by the exclusion of this evidence, since the lowest possible fine, one cent, was assessed against him.

We find no error in the record and the judgment of the Criminal Court is affirmed.