The Montgomery advertiser., 1902-06-26
HEAD NOTES OF THE DECISIONS
 OF THE ALABAMA SUPREME COURT

:<S&N<SSe ment for murder. where it is shown that
 the killing occurred early Tuesday morn-
 ing. testimony that on the Monday pe fore the killing the defendant threatened to kill the deceased, Is admissible as tend ing to show that the defendant bore malice towards the deceased and was
 actuated by malice in killing him.
 2 Same; charge as to self-defense-
 On a trial under an indictment for mur-
 der. charge seeking to instruct the
 jury as to self-defense, but which ignores
 the question as to whether the defendant
 was impelled to shoot the deceased by
 the belief reasonably engendered by the
 circumstances that it was necessary to do
 so in order to save himself from the then
 impending danger of great bodily harm
 is erroneous and properly refused.
 3, Same; general affirmative charge
 On a trial under an indictment for mur-
 der, even though there is no conflict in
 the evidence. but there is evidence tend
 ing to show the defendant bore malice towards the deceased and was actuated
 by malice in shooting him. the question as to whether or not the defendant was guilty of murder is one for the determina- ton of ahe jury, and therefore charges which instruct the jury that if they be live tho evidence thay can not find the defendant guilty of murder In the second degree" and that If the jury believe the evidence in this case they will find the defendant not. guiity." is erroneous and properly refused
 Affirmed.
 Opinion by Sharp. J.
 i GAMBILL V. SCHMUCK. Appeal from the City Court of Birming- ham-Action for False Imprisonment ax,la ixat. plea; demurrer.-In an action for false | imprisonment, where the complaint al- leges that the defendant maliciousiy and | without probable cause unlawfully ar rested and imprisoned the plaintiff. and | the defendant pleads that he was a li- l cense collector. and as such officer was vested with the power of arresting per- sons who violate the license laws. that
 he arrested plaintiff for violating the law, and that he had probable cause to be- 1 lieve that plaintiff was guilty, such count | is bad and subject to demurrer inter posed on the ground that the plea fails to deny malicious arrest. that the act of plaintiff was a misdemeanor, and the plea does net show that 1t was commit | ted in the presence of defendant, and l that the plea fails to show any offense committed by plaintiff. g. Same: same; same-In an action for | false imprisonment. where the complain ant alleges that the defendant malicious | iy and without probable cause unlawfully arrested and imprisoned plaintiff, and the | defendant pleads that he is a license tax | collector; that he arrested plaintiff in the exercise of his duty; that he had proba- | ble cause to believe that plaintiff was | guilty of selling liquor contrary to law, | such plea Is bad and subject to demur-
 Ter on the grounds that there is no law I to authorize tax collector to make ar- | rests without warrant, that the plea does | not allege that the offense was commit | ted in the presence of defendant, and | that 1t fails to set forth any facts con- stituting probable cause.
 | 3. Same; same: same.-ln an action for | false Imprisonment, where the complaint ant alleges that the defendant malicious l ly and without probable cause unlawful | ly arrested and imprisoned the plaintiff | and defendant pleads that he is license | and policeman tax collector: that 1t was his duty as said officer and he mad a right | as a citizen, to arrest those wliom he | had reason to believe were Violators of
 the law: that his duty was set forth in
 the City Code and ordinances; that he
 had probable cause to believe plaintiff i guilty of selling liquor at a certain place l in the city. and that he requested po- | liceman to arrest plaintiff, such plea Is l bad and subject to demurrer on the l grounds that the Mayor and Aldermen | had no authority to pass such an ordi- nance ss that set out in the plea; that I the ordinance Is void in that it Is un-
 reasonable in authorizing the arrest of a
 citizen for misdemeanor not committed | in the presence of the officer; that the plea does not show that the offense was | committed in the presence of the defen- dant; that the ordinance set out-tn the | plea is without charter authority; that l the plea shows that the arrest was made when no law was violated in the pres ence of defendant; and that the plea
 does not set forth facts constituting prob able cause.
 4. Malice; what required for rec ovory of punitive damages; charge.-In an &C.,
 ton for false Imprisonment, charge
 which instructs the jury that the malice required for the recovery of punitive damages need not amount to i'll will, hat red, or vindictiveness, but is sufficient if defendant is guilty of a wanton disre- gard of the rights of plaintiff, is not er- roneous.
 B. Charge to jury.-In an action for false imprisonment where the plaintiff was arrested on the charge of selling
 liquor without a license. it Is not error to charge the Jury that offering to do
 
 not engaging in business.
 & Same.-In an action for false i'm
 prisonment. where plaintiff had been ar
 rested for selling liquors without H.
 cense 1t is not error to charge the jury
 that intending to sell beer Is no offense,
 and an arrest for such intention is un-
 lawful.
 '. Same.-In an action for false im-
 prisonndent. where the plaintiff was ar
 rested without a warrant for selling
 liquor without a license and the evidence
 is in conflict as to whether the act was
 committed in the presence of the party
 arresting. it Is not error to charge the
 jury that a good reason to believe that
 the plaintiff had committed the offense
 is no excuse for making the arrest. and
 does not make the arrest lawful.
 8. Same.--In an action for false im-
 prisonment. where plaintiff was arrested
 without d warrant for selling liquor with
 out a license. in violation of an ordi-
 nance, and the evidence is in conflict as
 to whether the act was committed in the
 presence of the party arresting.a and the
 first count of the complaint alleges that
 defendant maliciously and without prob
 able cause arrested and imprisoned the
 plaintiff, and the defendant pleads. in
 substance. that the arrest was made in