Arrington v. State , 168 Ala. 143 ( 1910 )

ANDERSON, J.

The proof shows that Bell furnished the land and team and Palmer cultivated the land on shares. This created the relation of employer and employee, and not of landlord and tenant or as tenants in common. Section 4743 of the Code of 1907; Jordan v. Lindsay, 132 Ala. 567, 31 South. 484; Maddox v. State, 122 Ala. 110, 26 South. 305. The premises were properly set out in Bell.

The proof did not show that Johns was a general agent, and it was incumbent upon the state to show that he had authority to warn trespassers to keep off the land. Nor do we think that authority to do this could be inferred from the fact that Johns was “just a rider and saw that the negroes worked.” There was no proof that he had the control and management of the land. The defendant was therefore entitled to the general charge upon this theory. Assuming, however, that authority can be shown, we will discuss so much of the rulings upon the evidence as may operate as a guide upon the next trial.

The fact that the defendant asserted a claim to the land in the conversation with Palmer, and said he was going to get the land back, was a circumstance for the jury to determine whether or not he went upon the land after warning. It is true, there were things said in the conversation, which were not relevant or material, and which were calculated to prejudice the defendant with the jury; but the motion to exclude went to the whole conversation and did not separate the bad from the good, and the trial court will not be put in error for refusing to sustain said motion to exclude. It is true, when a part of a conversation is proved, the party against whom it is used would be entitled to bring out the entire conversation; but, when the state proves the acts or declarations of a defendant, it should be confined to those that are relevant and material only.

The fact that defendant’s gear and plow were seen on the land after the warning was a circumstance tending to show that he was on the land after warning. If they were there before the warning, this fact should have been brought out on cross-examination.

The custom of Mr. Arrington as to letting tenants work their land succeeding years, etc., could have been only material in case the defendant attempted to show a lawful excuse for going on the land after warning; but the defendant did not attempt to justify, but denied going on the land after the warning, and the exclusion of the evidence as to custom was of no> detriment to him.

The trial court erred in letting the witness Palmer, Jr., testify what and when Mr. Johns told him about warning the defendant. It was hearsay and not admissible. He could state when he saw the defendant on the land, and Johns could testify when he gave him the warning; but the witness not having heard Johns give the warning and not knowing that it was given, or when given, except from what Johns told him, it was error to let him fix the time he saw the defendant on the land as being subsequent to the time Mr. Johns told him he had warned the defendant. It is true the trial court limited this evidence; but the limitation did not eradicate the hearsay evidence. The witness could only fix the time fie saw tfie defendant on the land as being subsequent to tbe warning by stating that Johns bad told bim be warned bim. This was hearsay evidence pure and simple. — 1 Mayfield’s Digest, p. 318.

For tbe errors pointed out tbe judgment of tbe city court is reversed, and the cause is remanded.

Reversed and remanded.

Simpson, McClellan, and Sayre, JJ., concur.