— The indictment is for a trespass after warning, under section 4419 of the Code of 1876. It is insisted that, in as much as the fine imposed on the defendant, in case of his conviction, goes to the party injured, the prosecutor, Brooks, was an incompetent witness in the cause, on the ground that, being the beneficiary of the fine, he was disqualified by interest. — Code, §§ 3058, 4420.
. This very question was settled in Daniels o. The State, 60 Ala. 56, where it was adjudged that, in a prosecution of this character, the prosecutor is a competent witness for the State, although, under the statute, he is entitled to the fine, in the event of the defendant’s conviction. The fine in such cases is intended rathe]- as a punishment inflicted in furtherance of public justice, and as a reward to encourage the detection and conviction of the offender, than as a mere indemnity levied for the pecuniary benefit of the party injured. That the owner of the property injured or damaged is incidentally benefited, is secondary to the paramount legislative purpose of promoting the public policy, and advancing the public interest. — 1 Greenl. on Ev. § 412. It is upon this underlying principle that the case of Hall v. The State, 53 Ala. 634, very clearly rests, where *49it was decided that the owner of stolen property is not rendered incompetent as a witness against the thief, by the fact that the statute authorizes a judgment to be rendered in his favor, for the value of the stolen property, upon the trial of the indictment for the larceny.— U. S. v. Murphy, 16 Pet. 203; Com. v. Moulton, 9 Mass. 30; Spence v. The State, 11 Ala. 192.
The case of Northcot v. The State, 43 Ala. 330, may be considered as overruled, as well by the above decisions, as by statute. — Code, § 4410 ; Daniel’s case, supra. And the rule declared in Truss’ case, 9 Port. 126, is modified by ingrafting upon it an important exception to the old common law rule which worked a disqualification of witnesses, in criminal cases, upon the ground of pecuniary interest. — Hall v. The State, supra; 1 Greenl. on Ev. § 412.
The offense charged in the indictment, being that of tresjoass after -warning (Code § 4419), can not be made out, unless the prosecutor establishes his possession, actual or constructive, of the lands upon which the defendant is alleged to have trespassed, thus involving an entry on premises for which the. prosecutor could maintain a civil action. — Sandy v. The State, 60 Ala. 18. The statute was intended to protect the possession of. real estate against the entry of intruders, or trespassers, perpetrated in violation of such possession. It: was accordingly held in Watson v. The State, 63 Ala. 20, that if the defendant,when warned by the prosecutor, was himself in actual possession of the premises; or if, at the time of his entry, the title and right of entry resided in him, in either event, no conviction could be had against him. . “ A wrongdoer in actual possession,” it was said, “ though the constructive possession may reside in him in whom the legal title is vested, can not be warned off, and proceeded against under the statute.” This case was followed in McLeod v. McLeod, at the present term [ante. p. 42], where it was said that such a prosecution, as previously observed by Beickell, O. J., in Watson’s case, stpra, could not “be made to serve all the purposes of air action of trespass quare clciusum fregit, nor converted into an action of ejectment, in which the title, and right of possession may be determined.”
This statute is similar to some extent, in its policy, to that furnishing a summary remedy in cases of forcible entry and detainer, which was an indictable offense at common law, tending, as it does, to a breach of the peace. — 1 Hawk. P. C. ch. 64, § 45; 4 Black. Com. 148; Whart. Cr. L. 700; Clark’s Man. Cr. L. § 1121. In such cases the title can not be drawn in question, because the only matter or issue permitted to be involved, is that of the unlawful invasion of the actual possession of the plaintiff by the defendant. The plaintiff may, *50therefore, prevail against both the title and legal right of possession.— Clark v. Stringfello, Wyé: Ala. 353 ; 2 Brick. Dig. 11, § 81 eb seq.; Trial of Title to Lands (Sedgw. & Wait), § 94. Actual possession, however, is a prerequisite to the mainte-. nance of this action. As said in Russell v. Desplous, 29 Ala-308, 312, “ the constructive possession, which the law infers from the title, is not sufficient to maintain' it. If it were, a eontQ'Oversy as to title, which it is the purpose of the statute to avoid, would inevitably arise.”— Womack v. Rowers, 50 Ala. 5.
The section of the Code under consideration (§ 4419) has a broader purpose in view. In Sandy v. The State, 60 Ala. 18, supra, it was construed as embracing within its protection a mere constructive possession of premises, a ruling from which we are not disposed to'depart, believing it,’as we do, to be sound. In establishing such a possession, proof of title is essential, because, in the absence of an adverse actual possession, as well as in cases of what is termed in the books as a mixed possession, legal seizin is according to the title, the title drawing possession to the real owner. “ The doctrine is founded in justice and general convenience, and favors right, and resists wrong and oppression.” — Tyler on Eject. 905.
We are of opinion that, in the light of these principles, the court erred in excluding from the jury the deeds offered by defendant, the purpose of which, we suppose, was to prove the extent of the possession of both the prosecutor and of the defendant. They were coterminous proprietors, each claiming to be in constructive possession of a narrow intermediate strip of land, upon which the alleged trespass had been committed by the defendant. In all such cases, wc understand the rule to be, that where one has the possessio pedis, or actual possession of a portion of certain premises, his deed, or other color of title, is always competent evidence to create a constructive possession of the whole premises — to extend the actual possession of a part, so as to make it embrace the constructive possession of the whole. — Triál of Titles (Sedgw & Wait), §§ 728, 768, 763; Bell v. Denson, 56 Ala. 444; Hall v. Root, 19 Ala. 378; Farmer v. Eslava, 11 Ala. 1028. The possession is deemed co-extensive with the boundaries defined in the deed. As said in Powell v. Davis, 54 Mo. 318, “ where one is in actual possession of a part of a tract of land, and holding the wdiole under claim and color of title, he will in law be held to be in possession of the remainder.” — Weber v. Anderson, 73 Ill. 442; Trial of Titles (S. & W.), § § 766-7; Chapman v. Templeton, 53 Mo. 465. Such is the rule, at least, where there is no antagonistic possession. — Farley v. Smith, 39 Ala. 38, 44.
The observation, made in Watson’s case, 63 Ala. 19, 24, supra, that no mere claim of title, however sincerely made, can *51justify or excuse the trespass, if it be committed after warning,” is no doubt true where there is a violation of the prosecutor’s actual possession. But it was also said in that case, that “ the statute was not intended to convert the entry of the true owner into an indictable offense, or to deprive him of any right he could have exercised before its enactment.” No one, we apprehend, is authorized by the statute to warn his neighbor not to enter his own lands of which he already has constructive possession, and of which he is not disseized by the party giving the notice.
The judgment must be reversed, and the cause remanded.