Wheeler v. State , 114 Ala. 22 ( 1896 )

HEAD, J. —

From the manner in which the bill of exceptions recites the facts of the McKinnon survey, it must be taken that the evidence of them was legal. The recital is that, “the evidence for the State tended to show,” &c., followed by a statement of the survey made by McKinnon and the particulars thereof. This implies that the facts were tended to be shown by legal evidence. It is further recited that the surveyor himself did not testify, but tli&t the evidence proceeded from the prosecutor, who was present at the survey. The effect, therefore, is that the prosecutor knew the correctness of the survey and testified according to his own knowledge, and not from the hearsay of the surveyor. If he knew the facts himself, it was as competent to prove them by him as by the surveyor. The exceptions to the evidence were, therefore, not properly reserved.

There is no evidence in the record tending to show that the fence removed by the defendant was a partition fence. There is evidence that a small portion of it was on the dividing line between the land of defendant and prosecutor, but it is undisputed that the whole fence was erected by the prosecutor, and there is nothing to show any agreement, express or implied, that it should be a partition fence, or that it was, in any manner, treated' or used as such. The second charge requested by the defendant was incorrect in principle, and the first abstract.

There is no error in the record and the judgment is affirmed.

Affirmed.