Having carefully and attentively considered all the facts and circumstances of this case as disclosed by the record I find myself unable to accord to the views and opinion of my Associates.
The prosecution in this case was begun by affidavit, and based upon Title 14, Section 426, Code of Alabama 1940, which makes it an offense for any person without legal cause or goodexcuse to enter on the premises of another after having been warned, within six months preceding not to do so.
The record discloses, and it is admitted by respective parties, that the "premises" alleged to have been trespassed upon consists of a 27 foot strip between the town lots of prosecutrix and defendant. It is further also admitted that both of the parties have a deed to the identical strip of 27 feet of the lots. The evidence discloses that both of the parties claimed the property in question and each of them testified and offered other proof tending to show that each of them was in actual possession of the disputed strip of land and were exercising acts of possession thereon.
In the brief filed by the State, in this case, appears the following statement: "It is obvious that the deed of the prosecutrix and the deed of the defendant cannot be reconciled. From the description in each deed, there is an overlap of 27 feet between the two lots, which is the property in question."
An essential and material ingredient of the offense charged, is that the defendant entered upon said disputed premises without legal cause or good excuse. Unless that fact is proven by the evidence beyond a reasonable doubt, no conviction can be had, and it appears to the writer there is a total lack of any evidence in this case to sustain that material proposition. To the contrary it affirmatively appears that the defendant honestly believed he entered upon his own land of which he was in actual possession. And this in furtherance of his every effort to straighten out, and correct the controversy as to who was in possession of the premises in question. The facts of this case fail utterly to show that defendant had any intent to commit the crime charged and without intent so to do, there could be no crime.
As the writer sees this case, a criminal prosecution should not have been resorted to. It could in no manner settle the controversy between the adjoining land owners, and could only result in gratifying the prosecutrix that the neighbor was made to suffer. In other words, the "trespass after warning" statute is not designed to punish one party at the instance of another where both are merely scrambling for possession of the premises involved, and the party invoking the statute is not in exclusive possession of the entire premises in such sort that he is legally authorized to give warning. Code 1940, Title 14, Section 426; Havard v. State, 23 Ala. App. 228,124 So. 912.
In Watson v. State, 63 Ala. 19, the Supreme Court said:
"The statute was intended to protect the possession of real estate, against the entry of intruders or trespassers; and it can not be made to serve the purposes of an action of trespass or ejectment. If the defendant, when warned by the prosecutor not to enter, was himself in possession of the premises; or if, at the time of his entry after *Page 570 warning, the title and right of entry resided in him; in either case, no conviction can be had against him."
Under the law of this State there are several adequate remedies; remedies that could once and for all settle the controversy between the principals in this case. A prosecution for trespass after warning, as stated, settles no question involved conclusively. Hence, as stated, this prosecution should not have been had.
I am clear to the conclusion also that appellant is correct in the insistence that the purported warning, viz., "Please do not trespass" is fatally deficient under the law. Woodruff v. State, 170 Ala. 2, 54 So. 240.
Under the Statute, Title 15, Sec. 322, Code 1940, the Court of Appeals shall review the conclusions and judgment of the court on the evidence without any presumption in favor of the court below, either on the rulings of the law, or conclusion on the evidence, and if there be error, shall render such judgment in the cause as the court below should have rendered, or reverse and remand the same for further proceedings in the circuit court, as the Court of Appeals may deem right.
My opinion is, that the court erred to a reversal in finding the defendant guilty; and that such finding was contrary to the great weight of the evidence; and, for the reasons stated herein above, also contrary to law. It is my opinion the defendant should have been acquitted and discharged.