The defendant is under indictment charged with murder in the first degree, and through this petition makes application for bail. Under the Constitution and laws of this state, every person charged with crime, whether before or after indictment found, is entitled to bail before conviction as matter of right, except when the offense may be punished capitally, and even then if the proof is not evident or the presumption great of defendant's guilt. Ex parte McAnally, 53 Ala. 495, 25 Am.Rep. 646, Con. 1901, § 16. In passing upon questions of bail arising under the section of the Constitution just cited, the courts have laid down this rule: "It is safe to deny bail if the court would sustain a capital conviction on the evidence." Ex parte Nettles, 58 Ala. 268. The judge before whom this defendant was tried at nisi prius on his plea of not guilty had all the witnesses before him, had the advantage of personally hearing each witness testify, such as we have not, and reached the conclusion, on application for bail after a mistrial had been entered, that the defendant was not entitled to bail, while this court is not bound in its decision by the decision of the judge to whom the original application was made, none the less there are presumptions attending such decision which this court may not overlook.
It is the contention of petitioner that the question of the guilt or innocence vel non depends upon the identity of petitioner as being the person who fired the fatal shot that caused the death of R. W. Buckner, and the issue seems to be accepted by the state. Of course, if petitioner did fire the fatal shot, and it is proven beyond a reasonable doubt, there could be no question of defendant's guilt of murder. Even that question, under the evidence here presented, is one of fact for the jury. If the jury should so find and should fix the highest penalty, this court would not be justified in setting aside the verdict.
There is another phase of this case which impresses this court with more force than the point above mentioned; that is to say, defendant and several others were engaged in the violation of section 4627 of the Code of 1923, which under the law is a felony; they congregated, armed themselves, and went to the place in the woods in Blount county for the purpose of committing a felony, and, according to some of the testimony, with the avowed purpose of killing Buckner, if he interfered in the consummation of the crime in which they were engaged. We lay it down as a rule of law in this state that, where parties conspire together to engage in the unlawful manufacture of whisky in violation of section 4627 of the Code of 1923, and for the purpose of preventing interference with their unlawful purpose, or for the purpose of resisting arrest if discovered, and during the progress of the manufacture of the prohibited liquor and as a part of the res gestæ they are apprehended in the crime, and one of the conspirators shoots one of the apprehending officers from which such officer dies, the crime is murder, which may be punished in the highest degree, and its criminality extends to and embraces every party to the conspiracy. State v. Daniels, 119 Wn. 557,205 P. 1054; State v. Williams, 28 Nev. 395; Com. v. Bodner, 16 Pa. Dist. R. 909; People v. Michalow, 229 N.Y. 325, 128 N.E. 228; Christian v. State, 71 Tex. Cr. R. 566, 161 S.W. 101. Mr. Wharton in his work on Criminal Law lays down this rule in volume 1, par. 540:
"When a party who having authority to arrest or imprison uses the proper means on a proper occasion for such a purpose and in so doing is assaulted and killed, it will be murder in all concerned if the intent be to kill or inflict bodily hurt."
Following this statement in the same volume at section 542 there is quoted the holding of Sir W. Russell, which we here quote with approval:
"Peace officers, while in the execution of their offices, are under the peculiar protection of the law — a protection founded in wisdom and equity, and in every principle of political policy, for without it the public tranquility cannot possibly be maintained, or private property secured, nor in the ordinary course of things will offenders of any kind be amendable to justice."
For these reasons and many others that might be mentioned, the killing of officers, *Page 539 while in the discharge of their duties as such has been deemed murder of malice prepense, as being an outrage willfully committed in defiance of public justice. And where divers persons resolve generally to resist all opposers in the commission of a felony and to stand in opposition to the sheriff's possé, if necessary, they must at their peril abide the event of their actions. Therefore, if in doing any of these acts they kill one of the officers attempting to prevent the felony or to arrest those engaged in its commission, they are all guilty of murder. 3 Russell on Crimes, p. 134; Id. 127.
For obvious reasons we do not comment upon the testimony in this case, but have attempted to lay down general principles governing such cases. Holding to the above views, it is immaterial to the final issues as to which one of the parties engaged in the commission of the felony then in progress actually fired the fatal shot.
The petition is denied.