Withers v. State , 120 Ala. 394 ( 1898 )

DOWDELL., J.

The defendants were prosecuted and convicted under section 5606 of Code of 1896, for trespass after warning.

The offense denounced by the statute is one against the possession, and ordinarily the question of title or ownership of the property cannot be inquired into. Cases may arise where a perfect legal title in the defendant would not justify his entry upon land after warning.—Lawson et al. v. State, 100 Ala. 7.

We do not question the soundness of the argument of appellants’ counsel, that one joint tenant or tenant in common cannot prosecute his cotenant for trespass after warning in going upon the common property before actual ouster by such tenaut. But that is not the case presented by the record.

The question propounded by the defendants to the several witnesses, and to which the court sustained objections interposed by the State, sought to prove a joint ownership by the defendants with the prosecutor in the property trespassed' on, by parol evidence. Title or ownership of real property cannot be shown by parol testimony, without having first laid the proper predicate for the introduction of such evidence, where the ownership is founded upon title deeds. There was no pretense in this case that the joint ownership sought to be proved was based otherwise than upon paper title. The court very properly sustained the objection interposed by the State to the defendants’ questions.

That part of the general charge of the court excepted to by the defendants, in which the court stated, “There cannot be two possessions at the same time, which are antagonistic and adverse to each other,” and, “if George Brazier and John Gill were in possession antagonistic to the world, then no one else could be in possession,” was a correct exposition of the law when referred to the facts in this case.

We deem it unnecessary to discuss the other objections presented in the record as they are without merit and not insisted on by defendants’ counsel in his brief and argument.

We find no error in the record, and the judgment of the court below is affirmed.