
    DALY vs. THE STATE.
    [INDICTMENT FOR RETAILING SPIRITUOUS LIQUORS.]
    I. Setting liquor drunk on or about the premises.—It being shown that the liquor sold by the defendant was drunk “ in an alley, five -or six feet wide, which led from the main street between his house and that of an adjoining proprietor ; that the defendant had no control whatever over said alley, nor could he see drinking carried on there from his front door; that it did not lead into his back yard, nor was there any window ¡opening from his storehouse into it,”—these facts alone, without explanation or addition, do not authorize the court to ¡assert, as matter of law, in its charge to the jury, that the place where the liquor was drunk was about the defendant’s premises.
    Appeal from the Circuit Court of Greene.
    Tried before the Hon. Porter King.
    
    
      “On the trial of this ¡ease,” as the hill of exceptions recites, “ the State introduced as a witness one Wiley Hawkins, who testified, that the defendant kept a house in the town of Eutaw where spirituous liquors were sold; that he, (witness,) within twelve months before the finding of the indictment, frequently bought whiskey from the defendant by the quart; that said liquor, on divers occasions, was drunk in an alley, five or six feet wide, which led from the main street between the defendant’s house and that of one Hart; that the. defendant had n© control whatever over said alley, nor could he' see drinking carried on there from his front door; that said alley did not lead into his back yar,d, nor was there any window opening from his store-house into said alley; that said liquor was delivered by the defendant in bottles; that he (witness) did not know whether or not the defendant ever saw him or others drinking in said alley; and that the defendant frequently told him and othei’s who bought from him, that they must not drink on or about his premises.
    “ This was all the evidence in the canse; and thereupon the court charged the jury, ‘that if they believed from the evidence, beyond a reasonable doubt, that the defendv ánt, within twelve months before the finding of the indictment, and within said county of Greene, sold spirituous or vinous liquors by the quart, and that the same was drunk on or about his premises, they must find him guilty.’ The defendant excepted’ to this charge, and requested the following written charge: ‘ That the proof must he such as to satisfy the jury that the defendant knew, or had reason to believe, at the time of the sale of said liquor; that the same would he drunk in said alley, or on or about his premises;’ which charge the court refused to give, and the defendant excepted.
    “ After the jury had retired, and been absent for some time, they returned into court, and asked for a definition of the word about; and the court thereupon instructed them in these words: ‘To relieve you, gentlemen, of further difficulty as to the meaning of the word about, I charge you, that the alley, as spoken of by the witness,, was about the defendant’s premises/ To-t-his charge, also,, the- defendant excepted.”
    John G. Pierce, for the appellant.
    M. A. Baldwin, Attorney-General, contra.
    
   It.' W. WALKEN, J.—

When, in reply to the inquiry of the jury as.to-the meaning of the word ‘■‘about,” the' court charged them that “ the alley, as spoken of by the witness, was about the premises,” this, when considered in connection with the evidence, all of which is set out in the bill of exceptions, was tantamount to a charge, that the place where the liquor was drunk, as described by the witness, was within the prohibition of the statute; and so it must have been understood by the jury. How far the alley spoken of extended; to what distance the liquor was carried by the buyer before he drank it; whether the place of drinking was in view of the seller or of his premises, are all facts proper to be considered in determining whether the drinking took place about the premises. The bill of exceptions is silent upon all these points. And we cannot assert, as matter of law, that, on the facts disclosed, without explanation or addition, the place was about the premises within the meaning of the Code. The court below did, as we have seen, announce that as a conclusion of law from the evidence. In so doing it erred.—Easterling v. The State, 30 Ala. 46.

The judgment is reversed, and the cause remanded.  