Hurst v. State , 79 Ala. 55 ( 1885 )

STONE, C. J.

The indictment in this case ’ was framed under section 4130 of the Code of 1876, which reads as follows : “ Any person who conveys into the county jail, or into any other lawful place of confinement, any disguise, instrument, arms, or other thing useful to aid any prisoner to escape, with the intent to facilitate the escape of any prisoner therein lawfully confined under a charge or conviction of felony, or who, by any other act, or in any other way, assists such prisoner to escape, whether such escape be attempted or effected or not, must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than two, nor more than ten years.”

There is either a misplacing of the qualifying clauses of this statute, or such confusion in its expression, as that we find difficulty in its interpretation. We can readily understand how the conveying into a prison of a “ disguise, instrument, arms, or other thing useful to aid a prisoner to escape,” when done “ with the intent to facilitate the escape,” may constitute a crime, “ whether such escape be attempted or effected or not.” There is the evil intent to commit the crime, coupled with the evil act done, which is well adapted to facilitate the escape. The second clause, however, is somewhat confusing. Its language is, “ or who, by any other act, or in any other way, assists such prisoner to escape, whether such escape be attempted or effected or not.” The clause, “ assists such .prisoner to escape,” in its ordinary import, means that the prisoner does effect his escape, and that he has assistance in accomplishing it. That the prisoner neither effects nor attempts escape, may well harmonize and consist with any or all of the forbidden acts named in the first clause — “disguise, instrument,” &c., conveyed- into the prison. It may be incongruous with the latter clause — “assists such prisoner lo escape.” Possibly, the language, “ any other act, or any other way,” may be broad enough and flexible enough to include offered assistance to escape, even when done by some other act, or in some other way, than those specially named. If so, the added clause, “ whether such escape be attempted or effected or not,” would not be incongruous. The present cause does not require us to determine this last question. We do not hesitate to declare, however, that the clause which makes the offense complete, whether escape be attempted or effected, has unmistakable reference to the acts enumerated and forbidden in the first clause.

Is it necessary to a conviction that there shall be independent proof that the accused had the specific intent to aid the particular prisoner, or any particular prisoner to escape? Can the offense be committed without the consent of the prisoner ?

The first of these questions we answer in the negative. All men are presumed to intend the natural consequences of their acts. All men are presumed to be averse to involuntary confinement, and to desire liberty. So, if a. prison be opened, or so broken as to allow the inmates to escape, this would be proof of a general intent, and would authorize the jury to find a specific intent to liberate each and every prisoner confined therein. And on the same principle, we answer the second of the above questions in the negative.

The intent to liberate, however, must exist, and must be found by the jury. We have shown above that a general intent is enough, and have also stated that the jury may infer such intent from any intentional breaking, or assistance in an attempt to so break the prison, as that the prisoners confined therein can escape. Suppose there are prisoners, one or more, confined in the prison, who will not escape, even if the opportunity is offered, who have no intention to escape, and the alleged jail-breakers have knowledge that such prisoners do not intend to escape. This, if satisfactorily proven and found by the jury, disproves both special and general intent to aid or facilitate the escape of such prisoner or prisoners.

In framing an indictment under this statute, is it sufficient, in any case, to simply pursue the language of the statute? Several of the alternate words or phrases, standing alone, would be manifestly insufficient. The words “disguise,” and “instrument,” are of this class. If either be employed, it wrould be necessary to add the averment, that the disguise or instrument was “ useful ” to aid the escape. And the word “ instrument ” is comprehensively generic. A tool used for any work or purpose, is its meaning in this statute. — Worcester’s Dictionary. The name, or other description of the instrument, should also he set forth, to make the indictment sufficient, if that was the means of alleged “ aid ” relied on. So, of the generic terms or phrases, “ other things,” or “ any other act,” or “ any other way.” It would be necessary to aver what that other thing, act, or way was, and that it was useful to aid the prisoner’s escape, unless by its very nature it appeared to be so. Even the word “ arms ” is indefinite. It would be safest, in all cases, to add the qualifying words, “ useful” to aid the prisoner in making his escape. .And especially in all indictments framed under the first clause. The averment that it was done “ with intent to facilitate the escape,” is indispensable. Without such intent, the crime is not committed.—Clark’s Cr. Dig. § 86; Norris v. The State, 50 Ala. 126; Henderson v. The State, 70 Ala. 23; Kelly v. The State, 12 Ala. 244; Rowland v. The State, 55 Ala. 210; Stone v. The State, 63 Ala. 115.

The defendants were found guilty under the first, fourth, fifth, and sixth counts in the indictment. TJnder the rules declared above, each of those counts is insufficient. The first omits all mention of means, or instrumentalities, by which assistance was given or attempted. The fourth, fifth, and sixth counts, each, fails tó aver that the act charged was useful to aid the prisoner to escape, and there is nothing in the nature of either of the alleged acts, stated as they are, which can supply that omission. The indictment is insufficient, and the judgment should have been arrested. The tenth charge asked should have been given.

Reversed and remanded.