Gambill v. Cannon , 165 Ala. 570 ( 1910 )

SAYRE, J.

— Appellee recovered judgment against appellant on a complaint charging false imprisonment, in that defendant had caused plaintiff to be arrested. Pleas 4, 5, and 6 set up, in substance, that the plaintiff had committed the offense of selling milk in the city of Birmingham, contrary to an ordinance of that city, and in the presence of one Boggan, a police officer of that city, by whom the arrest complained of was thereupon executed.

It is observed of these pleas that they do not deny that Boggan arrested plaintiff on the procurement of defendant, nor do they affirm that plaintiff committed any violation of the ordinance in the presence of defendant. But they do affirm that defendant is responsible only in the event the arrest by Boggan was unjustifiable, and that Boggan was justified in making the arrest, for the reason that plaintiff had violated the ordinance, in his presence. If plaintiff had committed the offense for which he was taken into custody in the presence of Boggan, who was an officer with power to arrest, the power and duty of the latter to make the arrest was not destroyed nor diminished by reason of the fact that the defendant advised or procured him so to do. If defendant is to be held for the act of Boggan, he must also be justified by Boggan’s justification. We have consulted Gambill v. Schmuck, 131 Ala. 321, 31 South. 604; Mitchell v. Gambill, 140 Ala. 545, 37 South. 735, and Gambill v. Cargo, 151 Ala. 421, 43 South. 866.

The error in sustaining the demurrers to these pleas affects in part the rest of the trial, so that other assignments of error need not be specifically treated. For the errors pointed out, the judgment must be reversed.

Reversed and remanded.

Anderson, McClellan, and Mayfield, JJ., concur.