Jernigan v. Clark

McOLELLAN, O. J. Action by Clark against Jernigam for statutory penalties for cutting trees. — Code, § 4137. Defendant pleaded not guilty, and specially several facts provable under the general issue, and also a plea numbered 5 which is this: “That said trees or saplings were cut for the purpose of opening a road across plaintiff’s lands after permission obtained from plaintiff for1 defendant to haul logs or timbers across said lands.” ’• As permission to haul timbers across land is not necessarily permission to fell trees and thereby open a new road on such lands, since there may already be — as there ivas here — a road open over the lands, and since, evemi had there been no road, the wood may have been so open as to admit of hauling through it without felling the trees, this plea should have been demurred to. No demurrer ivas interposed, however, and issue was taken on the plea. The evidence set out! in the bill of exceptions proves the plea without conflict; but the bill does not purport to set out all of the evidence, and for aught that, appears there was other evidence adduced on the trial in disproof of the facts averred in the plea; and in support, of the trial court’s refusal of [316] the affirmative charge to defendant we must assume that there was such other evidence. The declaration of the defendant made to his employes at the time he directed them to cut the trees, to the effect that he had obtained permission from; Ciarle to open the road, was properly excluded. The defendant could not thus manufacture evidence for himself. It was not shown nor proposed to be shown 'that the controversy between Jernigan and Clark with reference to the former cutting trees on other land of the latter had any bearing upon the cutting involved in this case, and evidence as to such controversy was not relevant in this case. The proposed testimony of Brewton to- the effect that Clark gave Jernigan permission to cut what timber he wanted for cross-way purposes off his, Clark’s, land was not pertinent since it was not pretended that the trees for the cutting of which this suit is prosecuted were needed or cut for such purposes. If-the court abused its discretion! in declining to allow. defendant to examine the witness C. Jernigan after plaintiff had closed his evidence in rebuttal, which we by no means decide, the defendant was not prejudiced thereby, for the plaintiff thereupon! admitted the fact proposed to be proved by said witness. On considerations adverted to above ini treating of the 5th plea, we hold that the court committed no error in giving charges 1 and 2 requested by plaintiff. What is there said also disposes of the exception reserved to the court’s refusal to give charge 1 requested by defendant. Charge 2 of defendant’s series was bad for tire same reason, and also for that it would have directed a verdict in favor of a party, who had been eliminated from the case by amendment of the complaint. It will suffice to say in condemnation of charge 3 refused to defendant that' its language is inaccurate and confusing. Charge 4 is abstract in that there is no evidence that the trees involved in the suit were cut in opening an old road. To the contrary, the undisputed evidence is that these trees were not ’in any old road and were not cut in reopening such road. [317] We do not feel warranted in disturbing the ruling of the circuit court omi defendant’s -motion for a new trial. Tbe only ground of the motion is that the defendant has discovered material evidence, etc., since the trial. It is not made to- appear that he used requisite diligence to discover this evidence before the trial, but as to most of it it does appear that the exercise of due diligence would have discovered it before the trial.- — McLeod v. Shelby, etc., Co., 108 Ala. 81. Affirmed.