Boyett v. State

31 So. 551, 132 Ala. 23, 1902 Ala. LEXIS 76

• Court: Supreme Court of Alabama
• Decided: February 13, 1902
• Status: Published

Opinion

TYSON, J.

The defendant after, conviction in the county court, appealed to the circuit court. In the circuit court the trial is de novo and must be had,, unless waived, upon a brief statement of the -cause of the complaint signed by the solicitor which is amendable by leave of the court.—§ 4627 of Calm. Code and authorities cited under it. It is too clear for argument- that nothing that is shown to have' occurred upon the- trial in the county-court, was cause for abatement of the prosecution in the circuit court.—Tatwin v. The State, 66 Ala. 465.

The prosecution was for an alleged violation of -section 5624 of the criminal Code. If the fence was upon the land of the. prosecutor, it belonged to him and the defendant ivas properly convicted. On the other hand, if it was-a partition fence-between them as coterminous owners, or if it was upon the defendant’s land, then hi-s act of removing or tearing-it -down was not an offense denounced by this -statute.—Wheeler v. The State, 109 Ala. 56. So, then, the pivotal inquiry under the testimony was whether the fence was upon the land of the prosecutor. Its solution, we think, was a question for the jury.

The surveys, upon which the defendant predicates his ownership of the land, upon which the fence was built by the prosecutor, rvere not -shown to have been- correct or to have -been made in conformity with the requirements of the statutes as to notice, etc., etc.—Code, § 3895; Nolin v. Parmer, 21 Ala. 66; Bridges v. McClendon, 56 Ala. 327; Clements v. Pearce, 63 Ala. 284.

There was no err-or in refusing the written charges requested by defendant. •

Affirmed.