Morrison v. State , 151 Ala. 115 ( 1907 )

SIMPSON, J.

The defendant in this case was convicted of the offense of trespass after warning. The prosecution was commenced by affidavit. The first count in the affidavit is in the language of the statute (section 5606, Code 1896), charging the offense of unlawfully entering the premises, after having been Avarned not to do so, within six months . The second, as it originally stood, folloAved the wording of the second clause in the statute, with the exception that it did not allege that the defendant had entered “without having been Avarned within six months not to do so.”

The defendant moved to quash the affidavit, first, because it did not “aver whether the Tennessee Coal, Iron & Railroad Company is an individual, firm, or corporation; and, second, because the “affidavit does not aver that the defendant had been ordered or requested to leave the premises alleged to have been trespassed upon.” An inspection of the affidavit, as set out in the statement of the case, shows that it states that said company is “a corporation,” and also that defendant entered “after having been warned not to do so,” The court properly overruled the motion. The affidavit was then, by leave of the court, amended so as to make the second count in the affidavit state that the defendant entered “after having been warned within six months not to do so,” to which the defendant excepted. There was no error in this action of the court. — Wright v. State, 136 Ala. 139, 34 South. 233.

While the defendant testified that he had been to Til-ton’s house to collect a bill, and he and another witness testified that it was impossible to get to Tilton’s house “without, going upon the property of the Tennessee Coal, Iron & Railroad Company,” yet neither testified that it was necessary to cross this particular lot, so the question of “legal cause or good excuse” was not before the court. Hence the question to the witness Tilton, by the state, whether “it was necessary for the defendant to come to his house to collect the bill,” was irrelevant, and should have been excluded.

The oral charge of the court, set out in the bill of exceptions, was a charge on the effect of the evidence, which is forbidden, when not requested in writing. Consequently the court erred in giving the same. — Code 1896, § 3326.

There was no error in the refusal to give the charges requested by the defendant. -

The judgment of the court is reversed, and the cause' remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.