¶1The rulings of the court on this question, in effect, held as matter of law that the defendant, at the time of the homicide, was not within the curtilage of his own dwelling. The evidence for defendant tends to prove that defendant, at the time of the homicide, was in his garden, and on the question of whether or not this garden was within the curtilage, there was testimony that: "My father's house was about one hundred yards from the garden. It was east of the garden and the garden was west of the house and the gate that opened out of the garden opened towards the house, and in going to the house from the garden you came out of the gate across a private road going through the field and from there on up to the house. There was no fence around the house and yard, it was open and there were some large trees or grove between the house and the garden, all used as the yard." "The spring was between the house and the garden and the spring and the house and the garden were all there close together, and paths from the spring to the house and from the spring to the garden and from the house to the garden. And this ground around here was used for a yard and the garden was used as a garden to grow vegetables for the family. There was only one gate to the garden. It was on the southeast corner next to the house."
¶2Many cases arise in which it can be affirmed as a matter of law that a given house or spot is or is not within the curtilage of a dwelling. Such a case is Lee v. State, 92 Ala. 15,9 So. 407, 25 Am. St. Rep. 17, where the facts as there disclosed placed the defendant on his own land, but at a place entirely separate from his dwelling. There are many other cases similar to the Lee Case, supra. But, under our decisions,curtilage usually includes "the yard, or garden, or field which is near to and used in connection with the dwelling. In Ivey v. State, 61 Ala. 58, it is said: "It is not necessary either should be surrounded by an inclosure. It is propinquity to the dwelling, and the use in connection with it [italics ours], for family purposes, which the statute regards, and not the fact of its inclosure." Ivey v. State, supra; Cook v. State, 83 Ala. 62,3 So. 849, 3 Am. St. Rep. 688; Bishop Stat. Crimes, par. 278; 2 Bish. Crim. Law (7th Ed.) par. 104 et seq.; Washington v. State, 82 Ala. 31, 2 So. 356. There is an expression in Thomas v. State, 13 Ala. App. 50, 55, 69 So. 315, which seems to express a contrary view to the above, but the Supreme Court in Madry v. State, 201 Ala. 512, 78 So. 866, expressly limits the decision in Watkins v. State, 89 Ala. 82, 8 So. 134, so as to practically overrule the Thomas Case on this point. The Ivey Case, supra, has never been overruled. In line with that case and others above cited we hold that the testimony in this case was of that indeterminate character which should have been passed on by the jury, and that the circuit court committed error in holding as matter of law that the defendant's garden was not within the curtilage of his dwelling.
¶3For the errors in the rulings touching this point, the judgment is reversed and the cause is remanded.
¶4Reversed and remanded.
¶5BRICKEN, P. J., dissents.