State v. Lowry

29 Ala. 44 | Ala. | 1856

RICE, C. J.

If the front room of the house, in which the playing at cards occurred for which the defendant is indicted, is within the prohibition of section 8243 of the Code, it is clear, upon the evidence and the former decisions of this court, that the back room is also within the prohibition. — Johnson v. The State, 19 Ala. R. 521; Brown v. The State, 21 ib. 41; Huffman v. The State, at the present term.

The main question, therefore, in this case, is, whether the front room is within the prohibition. If the house was merely the private residence of the keeper of the public toll-bridge, it is not within the prohibition, although occasional settlements for toll were made therein. But if the front room was the apartment, or office, appropriated to the transaction of the business of the bridge, such as keeping the books in relation to tolls, settling accounts for toll, &c., and to which by the very nature of the business to which it was appropriated, persons desiring to pay wbat they owed for toll, or to make contracts about toll, were invited or licensed-to go, and was occupied and held by the keeper «subject to such appropriation, business, or use, then it is a “public house” within the meaning of the aforesaid section of the Code.

As the question whether the house is a public house or not depends on the nature of the business or use to which it was appropriated, and as the evidence on that point is not free from conflict, it was erroneous in the court below to charge the jury, that if they believed the evidence, they must find the defendant guilty. Such a charge can never properly be given, when there is any conflict in the evidence on any material question of fact in the cause. — Browning v. Grady, 10 Ala. R. 999 ; Stewart v. Hood, ib. 600 ; Boyd v. McIvor, 11 ib. 822.

For the error of the charge in this respect, the judgment is reversed, and the cause remanded. •