The opinion
CATES, Justice
(concurring specially).
The Act of July 7, 1945, was directed mainly against the mischief of common drunks obstructing passage on the highways as pedestrians. Its civil consequence by creating a case of contributory negligence is noteworthy.
The Legislature has laid down a rule of conduct to protect the besotted pedestrian as well as the motorist. This law, being criminal and in derogation of Common Law, must be strictly construed. This I take to be the essence of Brown v. State, 38 Ala. App. 312 , 82 So.2d 806 .
Here I think there was sufficient evidence of Haywood’s staggering from one part of the travelled roadway to another to make him a highway hazard.
Whether or not the mere status of “appearing” or being “along the public roads and highways” intoxicated can constitutionally be made a crime is not presented on this record. Certainly, after Shuttlesworth *362 v. City of Birmingham, 382 U.S. 87 , 86 S.Ct. 211 , 15 L.Ed.2d 176 , a reasonable warning to cease and desist from standing in the way would seem requisite to impose criminal sanctions.
This 1945 created offense — highway drunkenness — should not be confused, as seems to have been done in Cooper v. State of Alabama, 5 Cir., 353 F.2d 729 , with public drunkenness manifested by enumerated kinds of disorderly conduct. Code 1940, T. 14, § 120.
Here Haywood resembled the proverbial “headless chicken” and aggravated bis recklessness by crossing and recrossdng the road without apparent reason, save for one floundering foray to play Good Samaritan to Mr. Bearden. The jury seems to have inferred that Haywood was more hindrance than help.
Hence, I limit my concurrence to the result. I think the statute needs to be construed only so far as may be exigent under the facts of the case.