Ex parte Bonner , 100 Ala. 114 ( 1893 )

HARALSON, J.

The evidence in this case tends to show, and is not disputed, that the petitioner, John Bonner, bore towards A. J. Higgins, the man that was killed, and other members of his family, a very great grudge, and on a number of occasions, to different persons, and to members of the Higgins family, he threatened their lives, going to the extent, even, of threatening to slay them all, “big, little, old and young.” His conduct and his threats towards the deceased and his family had been such, as was shown, as to arouse suspicions, at once, against him, as the perpetrator of the assassination, and he fled the community.

The old man and his family were aroused from sleep, by a wanton trespass upon his own domicil, and he was shot down in the darkness of the night, in the presence of his family. He evidently anticipated the attack. His gun was in readiness, and he fired it off in the dark, for the purpose, as we may suppose, of frightening his assailants away; and immediately, five discharges from guns were fired almost simultaneously at him, and his body was pierced with several balls, killing him almost instantly.

Who perpetrated this bloody deed ? Sam Key, a witness for the State, testified, that Charley Morris, a brother-in-law of Bogue Bonner, the brother of the petitioner, who, himself, is shown to have cherished hostile feelings towards the deceased, came to his house, the day before the killing, and procured him to go with him to the house of petitioner, John Bonner; that they three, after supper, walked off, down east of his house, and sat down and talked, the result of which conversation was, that it was agreed that they, Morris and Key, should go, the next night, and throw stones at the house of Mr. Higgins, and, in that way, frighten and run him away from his home. He swore they were to do him no harm, and that such was the express understanding, —more than once repeated. They two met the next night, at the appointed time and place, and carried their guns along, with which to protect themselves, as he stated, but were not to hurt any one with them. The State insists, if their only purpose in going to the old man’s premises, was to frighten him away, by casting a few stones at his house, it was unnecessary, for them to have gone armed.

Another fact is shown,—that Bogue Bonner, who appears not to have been present when the alleged conspiracy was formed, appeared the next night, at the apppointed time and place of rendezvous, without anv communication with any one, so far as is shown, armed like the others, and prepared to accompany them. And still another fact is urged upon our attention, as tending to evidence the motive of the parties in going to the house of the deceased,—that when the old man stepped on his door sill and discharged his gun, all three of tlie confederates, as if by previous arrangement, discharged their pieces in very rapid succession.

If tlie petitioner entered into a conspiracy to do an unlawful act, the execution whereof made it probable, in the nature of things, that a homicide not specifically designed in tlie outset might be committed, be would be held as guilty as though he had been present and personally participated in the homicide. This principle is so well understood, and has been so repeatedly and thoroughly considered in tbis court, as to require no further discussion. It is only necessary to refer to the cases.—Williams v. State, 81 Ala. 1; Martin v. The State, 89 Ala. 115; Gibson v. The State, Ib. 121; Griffith v. The State, 90 Ala 583; Tanner v. The State, 92 Ala. 1.

Whether or not there was such a conspiracy formed and petitioner was a party to it, are questions for the determination of the jury, under proper instructions from the court.

For obvious reasons, we refrain from a discussion of tbe evidence, as we find.it in tbis record. On tbis testimony, if a jury were to find tbe petitioner guilty of murder in tbe first degree, a trial judge would sustain the conviction. Bail was properly ref used.—Ex parte McAnnally, 53 Ala. 495; Ex parte Nettles, 58 Ala. 268; Ex parte Sloan, 95 Ala. 22.

Habeas corpus denied.