Carwile v. State
35 Ala. 392
Ala.
1860
Check Treatment
A. J. WALKER, C. J.

The single question of this case is, whether a place within an enclosed lot, ninety feet from a street in the town of Kingston, in Autauga county, and which could be seen from the street, is a public place, according to the import of the phrase in the common-law definition of an affray. We judiciаlly know that Kingston is the county-seat of Autauga county. The streets of a town are dedicated to the public use; the public have a right to pass over them, and they are highways, (Case of the Road from Fitzwater street, 4 S. & R. 106;) and in sоme forms of indictments for affrays, a street is designated as the placе ‍​​​​‌​​‌‌​​​‌​‌​‌‌​‌​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌​‌‌‌​‌​‌‍where the offense was committed. — Lewis’ U. S. Crim. Law, 675 ; State v. Sumner, 5 Strob. 53. The streets of Kingston are, therefore, prima facie, public places. They are public, because of the purpose to which they are devoted, and of the common right which all persons have to use them.

The street being, per se, public, a place ninety feet from the street, and at the time visible frоm it, must, we think, be also public. At the distance of ninety feet, in the absence of ‍​​​​‌​​‌‌​​​‌​‌​‌‌​‌​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌​‌‌‌​‌​‌‍any intervening obstacle, the tumult of the fight could be heard, and its exciting scеnes witnessed; and persons passing by would be within reach of missiles *394thrown by the combatants. The distinguishing characteristic of an affray is the terror to the pеople actually resulting, or presumed to result, from, the fighting in a public plаce. — 2 Bishop on O. L. § 18 ; 1 Russell on Or. 291; State v. Sumner, supra. A fight at a place so near a public street, and so circumstanced in reference to it, as was thе place in this ease, is attended ‍​​​​‌​​‌‌​​​‌​‌​‌‌​‌​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌​‌‌‌​‌​‌‍by this distinguishing characteristic of an affray, and is so attended by reason of its proximity and relation to a plaсe per se public. From a fight at such a place there may be peril to a person passing along the public street, and also a view and а hearing of all that is alarming and exciting. One upon the public street is thereby subjected to a terror, identical in its cause and its character with thаt which would have been produced by a fight in the street. What difference сan it make, so far as the terror to the public is concerned, whethеr the fight actually occurs in the street, or hard by the street, and within full view pf it ? The distinguishing еlement of terror to the people is as much present in the latter, as in the former case.

It must be admitted, that there was no actual terror, if, ‍​​​​‌​​‌‌​​​‌​‌​‌‌​‌​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌​‌‌‌​‌​‌‍pending the conflict, no persons were on the street. Bat the same thing would be true, if the fight had been in the street. It is not so much the terror actually prоduced, as the liability of fighting in a public place to produce it, which thе law regards. Terror to the people is presumed from the fightiug in a public place. — State v. Sumner, supra.

If a fight should occur within six feet of a public place, and within unobstructed ‍​​​​‌​​‌‌​​​‌​‌​‌‌​‌​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌​‌‌‌​‌​‌‍view of it, it wоuld have the sam<3 effect upon the persons at the public place, as if it had occurred upon the very spot which is per se public. All would pronоunce such a fight an affray, if the other constituents of the offense existеd. It can make no diffei’ence, save in the slight modification of the degrеe of the effect, that the distance is increased to ninety feet. There is, in such a case, a result in reference to the public upon thе street precisely the same as if tbe fight bad been in the sti’eet. We cоnclude, therefore, that there is an obvious propriety in putting a plаce so near the street, and *395so situated in reference to it, in the same category with the street itself, so far as this inquiry is concerned. By doing so, wе avoid the absurd conclusion, that persons at a public place, and desiring to fight, can evade the law of affrays, by stopping a few feеt from the public place, although the same effect may be produced as if the fighting had occured at the public place.

Judgment affimed.