Burks v. State , 117 Ala. 148 ( 1897 )

COLEMAN, J.

The defendant was convicted for the offense of trespass after warning. The defendant and prosecutor were tenants, respectively, of coterminous land owners. The trespass complained of — if committed — was upon a narrow strip of land adjacent to the dividing line. The evidence showed that Mrs. Walker, the landlord of the prosecutor, had been in possession of the strip of land as a part of section 32 for many years, and a portion of it was enclosed by a fence. The county surveyor ran out the lines between the parties, and located the section line a short space inside of the enclosure. The trespass consisted in the removal of the fence by the defendant to the line located by the surveyor, and the taking of actual possession by the defendant of the strip lying between the line fixed hy the surveyor, and where the fence originally was erected, and which strip of land had been in the actual possession of Mrs. Walker for twenty years, and was then, when the fence was removed, in the actual possession of her tenant. The questions presented are, whether it was competent for the defendant to introduce evidence of these facts in defense of the prosecution. We are of opinion that the evidence was incompetent. The proof, showed that the prosecutor was in actual possession claiming under his lease from Mrs. Walker. The case is similar to that of Lawson v. The State, 100 Ala. 7, where it was held that if the prosecutor was in actual possession of the land trespassed upon, it is no defense that the defendant had a superior legal title. See Sherman v. The State, 105 Ala. 115. The exceptions reserved apply to instructions given to the jury or refused, and with, the exception of the last, are governed by the principles we have declared to be the law. Tested by these principles the rulings of the court are free from error.

The last charge requested required too high a degree of proof. It is not necessary for a conviction, that the defendant be proved guilty to the “exclusion of every possibility of innocence.”

Affirmed.