Opinion
6 Div. 477.
June 13, 1939. Rehearing Denied June 30, 1939.
Appeal from Circuit Court, Tuscaloosa County; Tom B. Ward, Special Judge.
Lawrence Franklin was convicted of petit larceny, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Franklin v. State, 238 Ala. 332, 191 So. 389.
State's witness Holman testified that he was watchman for the Gulf States Paper Corporation, and that it was his duty to look after their lands; that he found some timber cut on some of the lands, and found the logs placed over the company's line, and found the stumps on the company's land, and a track from the stumps to the logs. Witness was asked, "Do you remember about how far the stumps were from the line of the Gulf States Paper Corporation?" Defendant objected to this question, the objection was overruled, and thereupon the witness was asked "Do you know where the east line of the Gulf States Paper Corporation is?" and answered, "Yes, Sir."
He further testified as to certain measurements made of the distance of the stumps from the property line.
On cross examination witness was asked if he knew the location of the north line of the Gulf States Paper Corporation property in Section 35, township 20, range 9 west, and answered that he had walked the line but had never seen it run out; that he was not familiar with section 35, did not know whether the company had two forties in section 34, and did not know how much they had in section 35; that "the lines I know about are the ones blazed and we followed that. I didn't know who blazed them. I did not see the lines blazed. I have been told that was the Gulf States Paper Corporation's land. I did not see it surveyed." Defendant moved to exclude all testimony of the witness. The motion was overruled, and defendant excepted.
F. F. Windham and Leon B. Buer, both of Tuscaloosa, for appellant.
Objection to questions to witness Holman, and motion to exclude his testimony, should have been sustained. Ward v. Lane, 189 Ala. 340, 66 So. 499; Bullock v. Wilson, 2 Port. 436; 9 C.J. 288.
Thos. S. Lawson, Atty. Gen., and Prime F. Osborn, Asst. Atty. Gen., for the State.
Witness who was familiar with the physical conditions of the place, and had under observation the boundaries of the tract, was competent to testify with reference thereto. Pounders v. Nix, 222 Ala. 27, 130 So. 537; Tillery v. Gulf Refining Co., 220 Ala. 577, 126 So. 872; Brown v. State, 11 Ala. App. 321, 66 So. 829.
Appellant was convicted of the offense of petit larceny. Code 1923 Sec. 4908.
The charge, in effect, upon which he was convicted, was that he (with others not on trial) "feloniously took and carried away about seventeen hundred fifty (1750) feet of Poplar logs (of the value of less than $25.00), the personal property of the Gulf States Paper Corporation, a corporation."
The issues were peculiarly for the jury — the testimony being highly conflicting.
We do not see the value of our undertaking a detailed discussion of the evidence. All of it affirmatively appears not to be contained in the bill of exceptions sent up here, in the first place.
And this fact would prevent our being able to say — even if we might, otherwise — that appellant was due to have the jury given at his request the general affirmative charge to find in his favor.
We just do not see much that needs to be said.
Of course where there is a dispute as to the boundary line between given pieces of property " 'a witness who is not an expert surveyor [or any other kind of surveyor, we apprehend] may testify to existing and visible lines and monuments which have been adopted or assented to by adjacent owners.' " Pounders v. Nix, 222 Ala. 27, 130 So. 537, 539. Or, as otherwise stated, " 'In cases of disputed boundary, all evidence, whether documentary or parol, which bears upon the point in issue and which is not inadmissible on general principles, may be received in evidence.' " (Italics supplied by us.) Pounders v. Nix, supra.
The law as we have quoted in the next preceding paragraph disposes of, adversely to the contention urged here by his counsel, the only matters, worthy of mention, relied upon for a reversal of the judgment of conviction.
We find nowhere a ruling or action by the court infected with error prejudicial to any right of appellant. And the judgment is affirmed.
Affirmed.
On Rehearing.
Appellant's resourceful counsel seem impressed that because the bill of exceptions recites that it contains "all the evidence in the case" our court is bound by that recital.
But where the bill of exceptions shows on its face that it does not "contain all the evidence in the case," the mere recital that it does, cannot avail.
Here, it affirmatively appears that neither the map introduced into the evidence as "State's Exhibit A," nor the one introduced into the evidence as "State's Exhibit B," is included in the bill of exceptions.
The application is overruled.
Application overruled.