Withers v. State , 117 Ala. 89 ( 1897 )

HEAD, J.

We think the warrant of arrest was issued in the proper form, requiring defendant to be taken before the judge of the county court. See form, Cr. Code of 1886, § 4205 and § 4208; Or. Code of 1896, § 4601 and § 4604. The county court, therefore, had jurisdiction of the case.

The affidavit or complaint upon which the warrant was issued and the case tried, was subject to the demurrer assigned to it that it did not show the ownership of the property trespassed upon. Section 4204 of the Code of 1886, (Code of 1896, §4600), requires the affidavit charging an offense against property to state .the name of the owner. The court erred in overruling this ground of demurrer. We have said that it was sufficient, in trespass after warning, to describe the property trespassed upon, as the premises of the person named as owner. — Owens v. State, 74 Ala. 401.

The charge given for the State correctly stated the law. This is not a proceeding for the trial of titles to real property. If Brazier and Gill were in possession, as the evidence shows they were, defendants had no right to 'trespass upon that possession, although, in point of fact, they may have been entitled- to the possession as the holder of the title. — Lawson v. State, 100 Ala. 7.

Passing upon the charges requested by defendant aiicl refused, numbers 4 and 5 were abstract and otherwise faulty.

Number 6 was manifestly bad, as also number 7.

Numbers 8 and 9 were abstract.

Let defendant remain in custody until discharged by due course of law.

Reversed and remanded.