Carwile v. State , 35 Ala. 392 ( 1860 )

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 judicially 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 some forms of indictments for affrays, a street is designated as the place 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 from 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 scenes witnessed; and persons passing by would be within reach of missiles thrown by the combatants. The distinguishing characteristic of an affray is the terror to the people actually resulting, or presumed to result, from, the fighting in a public place. — 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 the 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 place 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 a 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 that which would have been produced by a fight in the street. What difference can it make, so far as the terror to the public is concerned, whether the fight actually occurs in the street, or hard by the street, and within full view pf it ? The distinguishing element 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 produced, as the liability of fighting in a public place to produce it, which the 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 would 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 pronounce such a fight an affray, if the other constituents of the offense existed. It can make no diffei’ence, save in the slight modification of the degree 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 the street precisely the same as if tbe fight bad been in the sti’eet. We conclude, therefore, that there is an obvious propriety in putting a place so near the street, and so situated in reference to it, in the same category with the street itself, so far as this inquiry is concerned. By doing so, we avoid the absurd conclusion, that persons at a public place, and desiring to fight, can evade the law of affrays, by stopping a few feet from the public place, although the same effect may be produced as if the fighting had occured at the public place.

Judgment affimed.