— The question, “who was in possession of the land on which the stick of timber grew,” &c., was in this case, an inquiry concerning a fact, and not a legal conclusion : and the objection to it was properly overruled.
The interrogatory on behalf of defendant to witness, Jernigan, which was ruled out about a conversation between defendant and him, at McMillan’s store, was illegal and irrelevant; and no explanation having been made of any intention to introduce other evidence by which that conversation might be made admissible, the court did not err in excluding it.
The evidence of the loss of the original deed of Jernigan to Mrs. George, was sufficient to justify the admission of a duly certified copy of it from the books in the Probate Court office, where, after due proof or acknowledgment of its execution, it had been recorded according to law. — Mordecai v. Beal, 8 Por. 535.
It having been shown by the State that defendant had applied to Jernigan, the agent of Mrs. George, for the purchase from him of the timber-tree in question — which had been refused — and that he afterwards cut it and hauled it away, he was allowed to prove by one Spelman, that “ defendant and Mrs. Jordan made a trade about some timber and that one of Mrs. Jordan’s sons went with the defendant and in his presence pointed out the identical tree in controversy, as one of the trees that he had purchased,” and that a man by the name of Aiken was present at this time. This was proper. A parol license to take the trees might be proved. Afterwards defendant proposed to prove by Aiken “ that he was present when Mrs. Jordan and her two sons sold the defendant, Morningstar, some land, and that they pointed out said tree in his presence as on the land sold;” *34•which was objected to, and excluded on the ground that the sale of land could not be proved by parol testimony.
For the purpose of explaining that he did not cut the tree and take away the valuable spar, or stick of timber obtained from it, animo furandi, the defendant was entitled to prove such facts as tended to establish this defence; and it was not necessary to this end that he should show a deed of the land, or a paper title, if he did not have any, to prove sale of the land to him. A purchase by parol from a person who owned it, or Avas believed by him to be the owner of it — if the seller acknowledged himself or herself bound thereby, Avould, in a case of this sort, be sufficient. Such a sale AArhile acknowledged by the party making it, might operate at least as a license to take the tree, if it belonged to such party. "What credit Avas due to the story thus proved, it would have been for the jury to determine. And if defendant had a conveyance of the land, and it Avas necessary to shoAV Avhat particular land he acquired thereby, the conveyance as the best evidence thereof, would have had to be produced and proved by him. — Morton v. The State, 30 Ala. 528; Mordecai v. Beal, 8 Por. 535; Blakey v. Blakey, 9 Ala. 391. The circuit judge erred in excluding the evidence in question.
It is within the discretion the laAV alleys to a circuit judge, to have a Avitness for defendant called back and further cross-examined on behalf of the State, after he has been discharged from the witness stand.
Let the judgment of the-Circuit Court be reversed, and the cause be remanded.
Defendant will remain in custody till discharged by due course of laAV.