
    Brunson v. The State.
    
      Indictment for Trespass after Warning.
    
    1. Trespass after warning; 'sufficiency of evidence and variance. Where an indictment charges that the defendant “without legal cause or good excuse, entered upon the premises” of another, “after having been warned within six months preceding not to do so,” evidence that after having entered upon said premises without having been warned thereto, the defendant refused to leave said premises after being warned, is insufficient to authorize a conviction under' such indictment.
    Appeal from the City Court of Mobile.
    Tried before the Hon. O. J. Semmes.
    The appellant in this case, Charles Brunson, was indicted, tried and convicted for trespass after warning. The facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.
    The defendant requested the court to give to the jury the following written charge, and duly excepted to the court’s refusal to give the same as asked: “If the jury believe from the evidence that the defendant after receiving the warning did not go beyond the limit of land he had taken actual possession of before he got the warning, then the jury must find the defendant not guilty.”
    Fitts & Stoutz, for appellant.
    If the defendant at the time he is warned by the prosecutor has himself gained actual possession of the premises, even though he be a wrong-doer, he enjoys the full protection of the law, and no conviction for the offense described in this indictment can be had against him; a wrong-doer, if he is in the actual possession, though the constructive possession may reside in the person in whom the legal title is vested, still he cannot be warned off and proceeded against under this section for his actual posession protects him from this particular, prosecution. Boluum v. Biabe, 73 Ala. 47; Goldsmith v. State, 86 Ala. 55; Watson v. State, 63 Ala. 20; Sandy v. State, 60 Ala. 18; McVleod v. McGleod, 73 Ala. 42.
    Massey Wilson, Attorney-General, for the State.
    Appellant’s contention is that the beginning of the building of the fence put him in such a position and was such an act as would put him in actual possession of the premises ; but such is not the law. As was said in Watson v. State, 63 Ala. 19, 24, “No mere claim of title, however sincerely made, can justify or excuse the trespass if it is committed after warning.” — See also Burks v. State, 117 Ala. 48.
    The rule that one in the actual possession of premises may maintain a prosecution for a trespass after warning is not intended to be infringed upon; but our contention is, that this rule cannot be used as a “shield-and sword;’’ that defendant had no such possession as would permit him to trespass upon the prosecutor’s premises and escape liability for the criminal offense. — Hooper v. Clayton, 81 Ala. 391; Grosby v. Prigden, 76 Ala. 385.
   DOWDELL, J.-

The prosecutor and defendant were proprietors of adjacent lands. The prosecution was commenced under section 5606 of the Criminal Code, 1896, which fixes a punishment for trespass after warning. This statute embraces two separate and distinct offenses under the common designation of trespass after warning; or, in other words, the offense of trespass after warning may be committed in two different and distinct ways. First, where the defendant “without legal cause or good excuse, enters into the dwelling house, or on the premises of another, after having been warned, within six months preceding, not to do so;” second, where the defendant, “having entered into the dwelling house or on the premises of another without having been warned within six months not to do so, and fails or refuses, without legal cause or good excuse, to immediately leave on being ordered or requested to do so by the person in possession, his agent or representative.” This latter provision, contained above under the second head, was not embraced in section 3874 of the Code of 1886 — that statute denouncing only the entering on the premises after warning given not to do so. This section was amended by an act approved December 3d, 1896, (Session Acts, 1896-97, p. 34), by incorporating in the statute the said second, provision set out, and as thus amended was brought forward and adopted into the present Code as section 5606. Prior to this amendment, and under the statute as it stood in the Code of 1886, it was decided by this court that a prosecution could not be sustained for trespass after warning where the defendant had already entered upon the premises and was in possession before any warning given him not to do so. In Watson v. State, 63 Ala. 23, it was said: “The indictment cannot be supported, if, ivhen the notice or warning was given, the defendant had actual possession of the premises, claiming title thereto, or claiming to hold them against Aeree, from whom the notice proceeded. The statute is intended for the protection of the possession of real estate, against the entry of intruders or trespassers; and it cannot be made to serve all the purposes of an action of trespass guare clausum fregit, nor converted into an action of ejectment, in which the title and right of possession may be determined. A wrongdoer in actual possession, though the constructive possession may reside in him whom the title is vested, cannot be warned off, and proceeded against under the statute.”—See also McLeod v. McLeod, 73 Ala. 42; Bohannon v. State, 73 Ala. 47; Mathews v. State, 81 Ala. 66; Owens v. State, 74 Ala. 401; Goldsmith v. State, 86 Ala. 55.

The indictment in this case charged that the defendant “without legal cause or good excuse entered on the premises of Andrew Zimlich after having been warned, within six months preceding not to do so, against the peace,” etc. Evidence of the refusal of the defendant after having entered on the premises and before notice or warning not to do so, to leave said premises, is insufficient under the above authorities to sustain the indictment. But it is insisted that under the evidence in the case, the defendant entered after notice and warning not to do so. The undisputed evidence in the case shows that the prosecutor and defendant were adjacent land owners and that the land alleged to have been trespassed on was a narrow strip, about ten feet in width, and which the defendant had enclosed within a wire fence made of posts set in the ground and strung with two wires. The prosecutor had been in the prior actual possession of this strip of land, and when he discovered the defendant in-the act of setting up the fence, he hurriedly went into the city to have notice prepared to serve on the defendant. The notice which was prepared and served on the defendant, was in form a request or order that the defendant should leave the premises, coupled with a further warning not to return. At the time of the service of this notice, about 2 o’clock in the afternoon, the defendant was at his home, where it appears that he had gone for his dinner, and when served with the notice, he said he would continue his work on the fence. He did return to his work on the fence and in doing so went upon the strip of land which he had already enclosed within the wire fence. The testimony is in conflict as to the amount of work done upon the fence after the return of the defendant. The tendency of the State’s evidence being that the fence was incomplete, and that defendant strung another wire on the posts; while the tendency of the defendant’s evidence was that all of the wires had been strung, and nothing remained to be done but the tightening of the same, and in the doing of which, the defendant at no time went across the fence on the prosecutor’s side, but remained on his side. . But this conflict under our view of the case is unimportant. The State elected to prosecute for the alleged trespass committed by the defendant upon his return, after receiving the notice copied in the record, to work upon the fence. This presents the question whether or not under the evidence, the defendant in returning to bis work upon tbe fence re-entered upon tbe premises of tbe prosecutor, that is, upon tbe narrow strip of land which bad been by tbe defendant enclosed under bis said fence and so brought within tbe asserted boundary of his own land. Prior to tbe erection of this fence, tbe dividing line between tbe two adjacent owners was an imaginary line with no exact or designated location, although tbe prosecutor bad been claiming, and cultivating, and, therefore, was in tbe actual possession of the land up to a point which included tbe strip alleged to have been trespassed on. When tbe defendant set up bis fence, which was in its nature a permanent piece of work, be did something more than a mere entering upon tbe strip in question. He took actual possession, though wrongfully, of tbe same, and brought it within tbe asserted boundary of bis own land, proclaiming bis dominion by tbe establishment of a physical barrier. If he bad been sued in ejectment, could he under such state of facts have denied tbe possession, or under an issue on a disclaimer have escaped tbe payment of costs? We think not. His entering upon, and setting up the fence as shown in tbe evidence, if a trespass, was a continuing trespass. When be stopped work.for tbe purpose of going to bis bouse for his dinner be was still in tbe actual possession of tbe strip in controversy, and bis return to work upon tbe fence was no re-entry upon tbe strip, but only a continuation of tbe actual possession he bad already assumed. It follows from this view of tbe case, that tbe written charge requested by the defendant should have been given, and the trial court, therefore, erred in its refusal. If the indictment bad been found under tbe second clause of tbe statute, a conviction might have been well supported on tbe undisputed evidence in tbe case. Tbe amendment, which was introduced into tbe statute by tbe act of December 3, 1896, was doubtless intended to meet such conditions as are presented in tbe present case.

For tbe error pointed out tbe judgment of tbe trial court must be reversed, and tbe cause remanded.

Reversed and remanded.  