#### Maddox *v.*The State.

*Indictment for Trespass after Warning.*

*1. Trespass after warning; possession by servant is possession of master.*— The possession against which the statutory offense of trespass after warning is directed is something more than the mere occupancy of the premises, and is such an interest in the property as carries with it the right of exclusive possession for the time being; and, therefore, where a master furnishes a house to his servant, without any contract of lease, the servant’s possession is the master’s possession, and a trespass on the premises is a trespass upon the master’s possession.

2. *Charge to the jury; properly refused when abstract.*— A charge which is based upon supposed facts concerning which there is no evidence adduced on the trial, is properly refused.

3. *Same; general affirmative charge.*— Where the evidence is conflicting, the court properly refuses to give the general affirmative charge in favor of the defendant in a criminal case.

4. *Trespass after warning; misleading charge.*— In a prosecution for trespass after warning where the evidence tends to show that the trespass complained of was committed in the yard surrounding a house occupied by a servant in the employ of the person named in the indictment as being in the possession of the premises, which yard extended several feet beyond the line separating the premises in the possession of theperscn named in the indictment from an adjoining place, a charge which instructs the jury that if the defendant was on the adjoining place, he was not guilty, is properly refused; since he might still have been a trespasser upon the yard surrounding the servant’s house, which was in the possession of the party named in the indictment.

Appeal from the City Court of Montgomery.

Tried before the Hon. A. D. Sayre.

The' appellant was tried and convicted under an indictment which charged that “without legal cause or good excuse, he entered upon the premises of W. C. Frizzle, after having been warned within the six months preceding not to do so.”

*111W. C. Frizzle, witness for tlie State, testified that he had possession under lease from other parties, and had had for a number of years, of tAVO plantations, one knoAvn as the Beed place, and the other as the Finley place; that on Feby. 2,1898, certain portions of the Beed place, not specified by witness, Avere sub-rented to third parties, and that the Finley place Avas at that time sub-leased to one Bose Pickett, aaJio Avas then in possession thereof; that the two places joined each other, the north and south line betAveen the counties of Montgomery and Bullock being the dividing' line; that his dAvelling house and “quarter” or tenant houses Avere on the Beed place in a row running north and south, and a feAV feet from the east line of the Finley place; that during the month of January, 1898, he notified the defendant not to trespass on any of his premises ; that Lizzie Stewart lived on the Beed place in a house about nine feet from the east line of the Finley place; that her yard extended about twenty feet in front and from the east line of the Finley place about tAventy feet east; that Lizzie Stewart held and occupied said house under Frizzle and not under Bose Pickett.

Lizzie Stewart, Avitness for the State, testified that on Feb. 2,1898, she lived on the Beed place in a house about nine feet east of the east line of the Finley place; that on said date she occupied her dAvelling house and a small yard in front, and that she was employed by said Frizzle for the year 1898 as his servant and he furnished her as such servant the house and yard in Avhich she lived and to which yard she SAvore the defendant came, and she was to he paid so much money per year for her services; that said yard extended from her door about twenty feet in front and from the east line of the Finley place about tAventy feet east; that said house and yard were some little distance from the outside of the curtilage of said Frizzle, and that the premises of another tenant Avere betAveen her yard and said curtilage of W. C. Frizzle; that her yard Avas about 40 or 50 feet east of the nearest public road which ran from north to south through the Finley place; that at 8 P. M. Feb. 2, 1898, Charles Maddox, the defendant, came doAvn the *112public road till lie was opposite ber house, then be came into her yard, and after talking to ber about two minutes returned tbe same way by which be came; that at the time he ivas in ber yard be was in Bullock county about ten feet from tbe east line of Montgomery county, in tbe State of Alabama.

There was another witness introduced in behalf of tbe State whose testimony corroborated the testimony of Lizzie Stewart as to tbe defendant’s'having been in the yard of Lizzie SteAvart on tbe night of Feb. 2.

Tbe defendant, as a witness in bis own behalf, testified that W.' C. Frizzle never notified him not to trespass on his premises; that he Avas not in the yard of Lizzie SteAvart on the night of Feb. 2, 1898; that on that night he came along the public road and stopped about 25 feet west of the house of Lizzie SteAvart on the Finley place, and after calling to Lizzie SteAvart and talking to her about two minutes, he returned the way in which he came, and that he Avas not on any of the premises of W. C. Frizzle.

The bill of exceptions then recites: “The court in its general charge having charged tbe jury fully that tbe other elements of the offense charged must be shown to exist beyond a reasonable doubt, and after describing all the elements of tbe offense, *ex mero motu*charged them as follows: ‘If you believe that tbe defendant at tbe time of the alleged trespass was in tbe yard of Lizzie SteAvart, and if you believe beyond a reasonable doubt from the evidence that Lizzie SteAvart occupied the yard asa servant merely of Frizzle, and under him, who held the plantation under a lease from other parties, then he Avas on the premises of Frizzle, and is guilty as charged in the indictment, the other elements above defined being established beyond a reasonable doubt.’ ”

The defendant duly excepted to this portion of the court’s oral charge, and also separately excepted to the court’s refusal to give each of the following charges requested by him : (1.) “If tbe defendant came into the yard of Lizzie SteAvart and was there at tbe time of the alleged trespass, and that said Lizzie Stewart was at tbe time occupying said house and yard under a contract *113with W. C. Frizzle by the terms of which Frizzle was to furnish her a house and yard and she was to render him certain services, then the defendant is not guilty.” (2.) “If the defendant, at the time of the alleged trespass was on the Finley place, he is not guilty.” (3.) “If the jury believe the. evidence, find the defendant not guilty.” (1.) “If the jury believe that the defendant at the. time of the alleged trespass was in the yard of Lizzie. Stewart, and that he was in the way used by her to go to and from the public road, and that she Avas in possession of her house in said yard under a contract with W. C. Frizzle by which he was to furnish her a house to Haw in for a-year, and she was to render Frizzle certain services as a servant, and that said house Avas within land in possession of said Frizzle near his line by a few feet, then the defendant is not guilty.”

George W. Stowers, for appellant.

Chas. G. Beoavat, Attorney-General, for the State.

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 *114Lizzie 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.