In my opinion the conclusion reached by SAMFORD, J., is wrong, and while the reasons and deductions expressed by him in his opinion might be applicable or pertinent in an action of ejectment incident to the facts in controversy in this case, they have no place in a prosecution for the violation of the criminal statute here involved. Code 1923, § 3446.
The evidence in this case is without conflict or dispute. It shows that a duly and legally constituted county surveyor located and established the northeast corner of section 17, range 5 east, in St. Clair county, Ala., and thereupon erected a monument to designate said corner. The evidence is also without dispute that this defendant willfully removed said monument. All this is not denied, and under the terms of this criminal statute, which must be strictly construed, and which has been construed in the case of Robinson v. State, 7 Ala. App. 172,62 So. 303, the defendant here is guilty as was properly held by the court below.
The question of the correctness of the location of the monument cannot be tested in a case of this character. If appellant's rights had been invaded, he had his remedy in the courts to assert his rights and correct the wrong. A man cannot take the law in his own hands and in defiance of a criminal statute willfully remove monuments erected by proper officers, and used or designated to mark the boundaries of land. I think the judgment of conviction from which this appeal was taken should be affirmed upon authority of Robinson v. State, 7 Ala. App. 172,62 So. 303. *Page 153