Angle v. State , 10 Ala. App. 232 ( 1914 )

WALKER, P. J.

The first count .of the indictment, in averring that the alleged misconduct of the defendant was “in a public place, to wit, Avithin the curtilage of the private residence of Marcellus Payne, Avhere one or more persons were present,” imported that the place specified Avas, at the time referred to, a public one. A place within the curtilage of a private residence may, by the use to Avhich it is put, be made a public one, within the meaning of the statute (Code, '§ 6770), Avhich makes it an offense for any person, Avhile intoxicated or drunk, to .appear in a public place where one or more persons are present, and manifest a drunken condition by boisterous or indecent conduct, or loud and profane discourse. We are not of opinion that the court was in error in overruling, the demurrer to this count of - the indictment. There was no repugnancy ‘in its averments as to the place of the alleged misconduct.

It was not reversible error to permit the witness Campbell to fix the date of the occurrence about which he testified by stating that it was the same day he heard the fight was. The evidence, without conflict, was to the effect that there was a fight at the residence of Marcellus Payne between him and one or both of the persons with whom the Avitness stated that he saw the defendant coming “from towards where Marcellus Payne lived.” It was not sought to prove by this Avitness anything except facts which came under his personal observation. The rule against hearsay testimony was not violated by the witness fixing the date of the occurrence about which he testified by a reference to the time of his hearing of something else, as to the happening of which there was other evidence which was undisputed.

As the trial was on an indictment containing three counts, the court Avas not required to instruct the jury to find a verdict of not guilty as to one or all of the counts separately; Whether the evidence was or was not such as to warrant an instruction that, if the jury believed it, they should not return a verdict of guilty under the first count, it was not error for the court to refuse to give written charge 1, requested by the defendant. — Kress v. Lawrence, 158 Ala. 652, 47 South. 574; Bessemer Liquor Co. v. Tillman, 139 Ala. 462, 36 South. 40; Dorsey v. State, 134 Ala. 553, 33 South. 350.

Affirmed.