Francis v. State

| Tex. | Jul 1, 1858

Wiieeleb, J.

The indictment was framed under Art. 321 of the Penal Code. The words of the law which define the crime are : “ If any person shall convey into any jail any disguise, instrument, arms, or any other thing useful to aid any prisoner in escaping, with intent,” &c.

The indictment charges, that the accused did “ furnish one Bobert Kuykendall, who was then and there confined in the jail of said county, charged,” &c., “ with certain instruments,” &c. Do the words used in the indictment describe the offence created by the Statute ? We think clearly not. The words are to be understood according to their usual meaning in ordinary language. (C. C. P., Art. 397.) “ Furnish ” and “ convey ” are words of widely different meaning. To “ furnish ” a thing and to “ convey ” it signify very different acts. To “ furnish ” is to provide, or supply anything Wanted by another; to “ convey,” is to bear, carry, or transport the thqjg to another person or place. A person at a distance may “ furnish ” the article desired, upon request by letter or otherwise, and another may “ convey ” it to the person for whom it is intended. One may “ furnish,” provide, or supply a person confined in jail with food, which another may ‘‘convey into any jail” to the person therein confined. Therefore to furnish a person who is confined in jail with any thing, may, and ordinarily does mean quite a different act from what we understand by the words “ shall convey into any jail ” any thing. It seems altogether probable from the evidence, that another furnished the tools ; and the indictment more properly describes his act than that of the prisoner, who, there is very little doubt, did convey them into the jail personally, or being present, did so connect himself with the fact as to render him a principal offender. (P. C., Art. 215, 216.)

It is not less a dictate of common sense than of the Common Law, that the appropriate mode of describing an offence in an indictment, is in the very words of the law which defines and describes it; because none other can be so apt and appropriate to convey the meaning of the law-maker as the words he has himself employed to convey Ms meaning. And when the Legislature has undertaken carefully to define every offence known to the law, in clear, perspicuous, and precise terms, and in plain language, (P. C., Art. 1,) there is the greater reason for requiring the. pleader to use the very words of the law in describing the offence. If he undertakes to use other words of equivalent meaning, he should be certain that they are equivalent in meaning. The Code undertakes to define offences in plain language, in order, of course, that the meaning of the law may be intelligible to all; and as it requires that the offence he set forth in' the indictment in plain and intelligible words, none can be so appropriate to describe the offence as those which the Legislature have chosen. (C. C. P., Art. 395.) As one object of a written accusation is to apprise the "accused of the nature of the offence with which he is charged, the language in which the offence is defined in the law will, in general, best attain that object. There can be no occasion for such a departure from the language of the law which defines the offence, as we find in this instance; and we know of no principle which will sanction such a departure. Had the indictment pursued the law, there might be no difficulty in affirming the judgment; but as it does not, and does not describe the offence by the use of words of equivalent meaning, the conviction cannot be supported, without holding that' a prisoner may be convicted of an 'offence for which he has not been indicted. The judgment is reversed and the cause remanded.

Reversed and remanded.