Opinion
8 Div. 465.
April 5, 1927. Rehearing Denied April 19, 1927.
Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.
J. G. Samples was convicted of trespass, and he appeals. Affirmed.
The complaint upon which the defendant was tried charged that he "did enter onto the premises of W. D. Sparks, and did willfully destroy timber, to wit, plum trees, and did willfully plow up and destroy a growing crop of corn thereon."
Section 5554 of the Code of 1923 provides that:
"Any person who, without legal cause or good excuse, enters * * * on the premises of another, after having been warned, within six months preceding, not to do so; or any person, who, having entered * * * 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 * * * to do so by the person in possession, * * * must on conviction, be fined," etc.
Section 5560 provides that:
"Any person who willfully commits any trespass on the lands of another * * * by destroying or injuring any outstanding crops thereon, * * * must, on conviction, be fined," etc.
William C. Rayburn, of Guntersville, for appellant.
The complaint charges the defendant with trespass after warning, and there could be no conviction in the absence of evidence that defendant was warned by the party in possession, or agent or representative, within six months immediately preceding the commencement of the suit to leave the premises or not to trespass on said premises. Code 1923, § 5554; Sewell v. State, 82 Ala. 57, 2 So. 622.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
SAMFORD, J. Affirmed.
On Rehearing.
This cause was originally affirmed, for the reason that the only question presented was the decision of the trial court on the merits, no jury having been demanded, and, following all of the decisions relative to presumptions in favor of the findings of the lower court on the facts, an affirmance followed a consideration of the record. No opinion was found to be necessary.
On application for rehearing appellant's counsel files a brief insisting that the cause should be reversed, because there is no allegation or proof that the defendant was ordered to leave the premises by the party in possession within six months preceding the commencement of the prosecution. This would have been necessary under section 5554 of the Code of 1923, but the prosecution in the present case is brought under section 5560 of the Code of 1923, and charges the defendant with having willfully destroyed or injured an outstanding crop on the lands of another. It will be observed, therefore, that proof of previous warning is not necessary, and that appellant's counsel has entirely misconceived the character of the prosecution.
Application for rehearing overruled.