
    11884.
    Ruis v. The State.
    Decided January 25, 1921.
    Accusation of trespass; from city court of Alma — Judge Luke. September 3, 1920.
    The accusation charged that on May 3, 1920, J. O. Euis unlawfully took and carried away two wagon-loads of shingle block wood from uninclosed lands of J. E. Taylor, to wit, 400 acres, described, without the consent of the owner, the said Taylor. On the trial the only witness was Taylor, who testified, that he owned the wood on the 400 acres described, and that on July 27, 1920, he met the defendant with a load of shingle block wood coming from this land, and that the defendant, when asked where he got the wood, said, “ back up on the shingle pile, ” and that Oscar Boatright had given him. the wood. The witness further testified: “ I saw him before this hauling off another load of this wood. . . I sold the timber on this 400 acres of land to Oscar Boatright to manufacture into shingles, and he hauled the timber to his mill that he put upon this land, and manufactured the timber into shingles. While he was running this sawmill he hauled some timbers off the lands in the possession of defendant, J. O. Euis, and his mother, which lands are claimed by them, and he manufactured some shingles out of these logs that he hauled off this land, and also some shingle block wood. While Boatright was running this sawmill I hauled off some of the shingle block wood. I saw J. O. Euis over there hauling off some of the shingle block wood; that was while the sawmill was in operation by Oscar Boatright. I do not know who owned the mill, but Oscar Boatright was there operating it and in charge of it. After the mill was' moved away was when I saw the defendant with this load of wood. This was three -months or more after Oscar Boatright ceased to run the mill, and after he moved it I saw the defendant moving two loads of the shingle block wood from this land. I heard Oscar Boat-right testify on the preliminary trial of this case that after or about the time he moved his mill the defendant, J. O. Ruis, asked him what he was going to do with the shingle block wood, and he told J. O. Ruis, so he testified, that so far as he, Oscar Boat-right, was concerned, he, J. O. Ruis, could have the shingle block wood. ” A deed dated January 28, 1905, conveying this land to J. R. Taylor, was introduced in evidence. The defendant, in his statement at the trial, said: “When Mr. Boatright was running this sawmill, cutting shingles, my mother and I sold him some timber with the understanding that 'we were to have the shingle blocks from this timber. He hauled our timber over there and cut our timber, and I hauled some of the shingle blocks off while he was cutting the timber, in his presence and in the presence of Mr. Taylor, and about the time that Oscar Boatright left this location and moved off his mill I saw him one day and asked him what he was going to do with his shingle blocks, and he said that I could have them. I hauled off the two loads of shingle blocks, and I continued hauling off the shingle blocks after he left the mill. They were my shingle blocks. I claimed to own them and claim them now. ”
   Luke, J.

The evidence in this ease did not authorize the verdict, and for this reason it was error to overrule the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworth, J., concur.

Padgett & Watson, for plaintiff in error.

II. L. Causey, solicitor, I. J. Bussell, contra.  