Brown v. State

27 Ala. 47 | Ala. | 1855

RICE, J.

The charge is erroneeus, because it authorized the jury to find the defendant guilty, without any proof that the offence had been committed in the county in which the indictment was preferred. — Code, § 3514; Rowland v. Ladiga, 21 Ala. R. 9.

Eor-this error,- we are bound to reverse the judgment, whether there is error in any other particular or not. As the case must be remanded for another trial, we deem it proper, in view of the facts shown in the bill of exceptions, to state, explicitly, that we do not intend to depart from or'impair the decisions of this court made in Johnson v. The State, 19 Ala. R. 527, and in Windham v. The State, 26 ib. 69.

One of the plain results of those decisions is, that a storehouse in the country is a “ public house”, within the meaning of section 324-8 of the1 Code. Another is, that where the house consists of two rooms, one over the other, and the owner controls both, and uses the lower room as his store, the upper room is within the prohibition of said section, unless it affirmatively appears that it is not used as an appendage to the store, nor in the prosecution of its business, nor in connection with the store for the mere convenience or accommodation of the owner, his employees or his customers, but is occupied for some justifiable private purpose entirely disconnected from the business of the store or the convenience of its customers.

A house consisting of two rooms, one above the other, under the control of one and the same person, is, prima facie, an entirety. If the lower room is a “ public house” within the prohibition of said section, the upper room is, prima facie, within the prohibition. Proof that the lower room is a “ public house”, raises the presumption that the upper room is within the prohibition; yet this presumption is not conclusive, but may be overthrown by proof that it is not consistent with the real truth of the case.

For the error above mentioned, the judgment is reversed, and the cause remanded.