The opinion
CATES, Judge
(dissenting).
I respectfully dissent from the judgment of reversal herein. Wheat v. State, 281 Ala. 287 , 202 So.2d 73 .
Shine was a party to a cunctative man-oeuvre to hinder a municipal court sentence. This circumstance alone should keep us from designating his would-be captors as assailing trespassers to be shot down as though they were vicious burglars, or boarding pirates.
According to what light I can perceive through the heat of Judge Johnson’s excoriation of the bail bondsmen, Shine had been convicted of an ordinance violation. In order to stall off going to city jail or paying a fine, he took an appeal.
Municipal law lets a defendant, within five days from conviction, post bond with sureties and go free to answer the same charge in the circuit court. Code 1940, T. 37, § 587, as amended.
The opportunity to use this device of an “appeal” so as to afford a defendant additional free time in order to “keep his feet on the ground” and perhaps raise money seems not to have been lost on both Shine and the instant bail bondsmen. I think that Shine ratted on his liberators.
Because Shine was to obey and endure a municipal court sentence, his bondsmen were under no duty to surrender him to the sheriff. Rather, the chief of police was the receiving officer. I see nothing that contradicts an intention on the part of Dean to take Shine to the chief. I think the deceased was acting under color of presumptive legal right to retake Shine.
Shine may have been, to borrow a cliche, thwarting a diabolical plot to kidnap him. *183 If so, he should have first adduced evidence to show it, and second he should have asked the trial judge for an instruction as to the inferences which the law would let the jury draw concerning the testimony.
In Thomas v. State, 255 Ala. 632 , 53 So. 2d 340 , the deceased was a foredawn-collecting money lender. Here Shine himself had brought about a contract of bail, an obligation which put a legal string on his own freedom.
For Shine to repudiate his bail bond with a pistol is but anarchic murder. The jury was charitable in only giving Shine fifteen years.