Dickens v. State , 109 Ark. 425 ( 1913 )

Wood, J.,

(after stating the facts). The court did not err in overruling the demurrer to the indictment. The statute under which appellant was indicted is section 10 of an act approved December 17, 1838, and reads as follows:

“Whoever shall, by force or menaces of bodily harm, or by other unlawful means, set any one at liberty who is in custody, after a lawful arrest either before or after conviction, for any offense mentioned in this act, knowing or being informed that such offender is lawfully arrested as aforesaid; or any officer or other person having such offender in custody, upon a lawful arrest or conviction for any of said offenses, who shall voluntarily, corruptly and of purpose, let such prisoner escape, shall, on conviction, be imprisoned in said jail or penitentiary house not less than two nor more than seven years. All persons being present, aiding and abetting, or ready and consenting to aid and abet in any of the foregoing offenses shall be deemed principal offenders, and indicted and punished as such.” See also Ear by’s Digest, § 1673.

The indictment follows substantially the language of the statute, and is sufficient. While the indictment is not artfully drawn, it does charge that the appellant unlawfully, wilfully and maliciously and feloniously, by force and menaces of bodily harm, set at liberty one Charlie Spears, and “by then and there aiding, abetting, advising and encouraging the said Charlie Spears to escape from custody,” and “by then and there forcibly catching, holding and detaining the said James N. Crenshaw in his efforts to recapture the said Charlie Spears,” etc.

The indictment is sufficient to advise the appellant. that he was charged with the crime designated as “escape and rescue,” by aiding Charlie Spears, who was in lawful custody, to make his escape by force exerted by “catching, holding and detaining” the officer having him in charge, and in this manner interfering with the officer in his efforts to recapture the prisoner who had escaped. The indictment charges a public offense, and it charges only one offense. Therefore, the court did not err in overruling appellant’s motion to arrest the judgment, and also the motion to require the State to elect.

Appellant contends that there is no evidence to sustain the verdict, and we are of the opinion that this contention is sound. The testimony wholly fails to establish the charge made in the indictment that appellant effected the escape and rescue of Charlie Spears “by then and there forcibly catching, holding and detaining the said James N. Crenshaw,” etc. There is no testimony to sustain this allegation. There is no charge in the indictment that appellant committed the alleged offense in any other manner than by “forcibly catching, holding and detaining the said James N. Crenshaw,” no other “unlawful means” is alleged. Appellant did not forcibly catch hold of the officer, and did not forcibly hold and detain him. The charge as. laid is not proved. The verdict is without evidence to sustain it, and for this reason the court erred in not granting appellant’s motion for a new trial.

The judgment is therefore reversed and the cause is remanded for a new trial.