Daly v. State

33 Ala. 431

Opinion

It.' W. WALKEN, J.—

When, in reply to the inquiry of the jury as.to-the meaning of the word ‘■‘about,” the' court charged them that “ the alley, as spoken of by the witness, was about the premises,” this, when considered in connection with the evidence, all of which is set out in the bill of exceptions, was tantamount to a charge, that the place where the liquor was drunk, as described by the witness, was within the prohibition of the statute; and so it must have been understood by the jury. How far the alley spoken of extended; to what distance the liquor was carried by the buyer before he drank it; whether the place of drinking was in view of the seller or of his premises, are all facts proper to be considered in determining whether the drinking took place about the premises. The bill of exceptions is silent upon all these points. And we cannot assert, as matter of law, that, on the facts disclosed, without explanation or addition, the place was about the premises within the meaning of the Code. The court below did, as we have seen, announce that as a conclusion of law from the evidence. In so doing it erred.—Easterling v. The State, 30 Ala. 46.

The judgment is reversed, and the cause remanded.