Maddox v. State , 122 Ala. 110 ( 1898 )

DOWDELL, J.

— While the offense of trespass after warning under the statute is an offense against the possession, the possession contemplated is something more than a mere occupancy. It is such an interest in the property as carries with it a right to exclusive possession for the time being. The possession of the servant is the possession of the master, and any offense committed against such possession, is against the master’s possession. The undisputed evidence in this case Avas that Lizzie Stewart Avas the hired servant of W. O. Frizzle, and the house occupied by her Avas furnished to her by said Frizzle as his servant, and Avas under the control of Frizzle. She. had no exclusive right to the possession, and in the absence of any contract or agreement to the contrary, the employer or master could change her occupancy at Avill. As to the possession of the house so occupied between the master and servant the relationship of landlord and tenant did not exist.

The first and fourth written charges requested by the defendant hypothesized facts not given in evidence. There was no eAddence that Frizzle contracted with Lizzie Stewart to furnish her the house or any house. These two charges Avere, therefore, abstract, and were for that reason, if no other existed, properly refused. The third Avritten charge requested Avas the general affirmative charge. No further comment in respect to this charge need be made than the statement that there was a palpable conflict in the evidence.

While the evidence sIioavs that the house occupied by Lizzie Stewart, the servant of Frizzle, Avas located on the Eeed place, AAdiich said place Frizzle held under a lease, yet the yard of said house extended ten or more feet over the line of the Eeed place into or upon the land Iuioavu as the Finley place, this latter place having been sub-leased by Frizzle to one Pickett. The bill of exceptions states that Lizzie SteAvart held and occupied the house and yard under Frizzle and not under Pickett. As a part of the yard extended into the Finley place, the defendant at the time of the alleged trespass, might have been upon the Finley place, and still have been guilty as charged. The second charge requested by the defendant was, therefore, misleading and aatus properly refused.

The proposition of Iuav staff'd in that part of the oral charge excepted to, Avas in accord Avith the vieAvs we have above expressed and Avas free from error.

We find no error in the record, and the judgment of the city court must be affirmed.