Haynes v. StateHaynes v. State
Lead Opinion
We granted the petition for writ of certiorari in this cause to review the decision of the Court of Criminal Appeals which affirmed petitioner’s conviction for “aiding or assisting” a felony prisoner to escape, for which cоnviction he received a five-year sentence.
The petition raises a question as to the sufficiency of the indictment to support the conviction. After a thorough consideration of this issué, we conclude that the indictment will not support the conviction. We therefore reverse and remand.
Briefly, the facts are that James Fred Kelley, while lawfully confined in the Covington County Jail under conviction of a felony, escaped from that jail by holding a knifе to a hostage’s throat, then by demanding that an automobile be brought to the jail, that the jail door be unlocked, and that the officers “fade out of sight.” The automobile was brought, the jail door was unlocked, the officers did apрarently “fade out of sight” while Kelley, with hostage in tow, got into the car behind the steering wheel, whereupon the officers approached the car, opened fire, and killed Kelley on the spot.
It appears that рetitioner, while serving as a trusty at the jail learned of Kelley’s plan to escape, and at Kelley’s request, secured the knife with which Kelley effected his escape. Kelley gave petitioner $5.00 for the knife.
We agreе with the Court of Criminal Appeals that the weight and sufficiency of the evidence was for the jury. We cannot agree that there is no error in the record and that the cause should be affirmed. To the contrary, we must conclude thаt the indictment will not support the judgment of conviction.
Although the opinion of the Court of Criminal Appeals does not treat the question of the sufficiency of the indict
The issue as to the sufficiency of the indictment was raised in аpplication for rehearing. It is a federal constitutional issue because a conviction upon an indictment which fails to state an offense, does not comport with “due process” under the Fifth and Fourteenth Amendments tо the United States Constitution. Moreover, the indictment fails to inform defendant of the acts with which he is charged. Gayden v. State,
As this Court expressed itself in the majority opinion in Duke, supra, viz.:
“We think it is the duty of every appellate court, in its opinion, to treat аnd dispose of any constitutional question properly raised in a criminal case on appeal.”
Even the dissenters agreed with that pronouncement. This entire Court, then is firmly committed to the proposition that a federal constitutional question must be treated, if properly raised. Duke, supra. We think it was raised properly here.
Now, we address ourselves to the question as to the sufficiency of Count II of the indictment.
Petitioner was tried and convicted under Tit. 14, § 157, Code of Alabama 1940 (Recompiled 1958) which provides:
“Any person who conveys into the county jail, or into the penitentiary, or into any convict prison, or into any other lawful place of confinement, any disguise, weapon, tool, instrument, or other thing useful to aid any prisoner to escape therefrom, with the intent to facilitate the escape of any prisoner lawfully confined therein under a charge or conviction of felony, or who, by any other act; or in any other way, aids or аssists such prisoner to escape, whether such escape be attempted or effected or not, or who rescues, or attempts to rescue, any such prisoner therefrom, or from the lawful custody of any officer or person, shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than ten years.” [Our emphasis.]
The pertinent portions of Count II of the indictment read as follows:
“The Grand Jury of said County charge that before the finding of this indictment, that Jake Edward Haynes, alias Jake Haynes, alias Edward Haynes, whose name is to the Grand Jury otherwise unknown, did aid or assist James Fred Kelley, a prisoner lodged in the Covington County, Alabama, jail under a conviction of a felony to escape therefrom, against the peace and dignity of the State of Alabama.”
This Court has long held that a count in an indictment framed in the
Long ago, the United States Supreme Court, in Unitеd States v. Simmons,
“Where the offense is purely statutory, having no relation to the common law, it is, ‘as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.’ 1 Bishop, Crim. Proc., sect. 611, and authorities there cited. But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by thе indictment, with reasonable certainty, of the nature of the accusation against him, to the end that he may prepare his defence, and plead the judgment as a bar to any subsequent prosecution for the same offence. An indictment not so framed is defective, although it may follow the language of the statute.”
It is obvious that Count II of the indictment seeks to charge an offense under Tit. 14, § 157 and falls far short of stating an offense. That statute has been a part of our law in an almost unchanged state for at least a hundred years.
Perhaps, the leading case decided under the statute is Hurst & Hill v. State,
An almost identical count, as Count II here, appeared in Hurst, and it was there held to be insufficient and the cause reversed. The first count in Hurst charges thаt the defendants “did assist one Gid J. Entriker, who was lawfully confined in the county jail of Calhoun County, under a charge of murder, to escape from said jail.”
Subsequently, in Walker v. State,
“The statute, as has been said, is not merely an affirmation of the common law, but creates a new substantive оffense, having three main ingredients :■ 1st, a prisoner lawfully confined under a charge or conviction of felony; 2d, conveying into the county jail, or other*225 place of confinement, something useful to aid such prisoner to escape, or aiding or assisting his escape by any other act, or in any other way, whether such escape be attempted or effected or not; 3d, the intent to facilitate the escape of such prisoner. — Wilson v. State,61 Ala. 151 . When the indictment charges that the offered assistance was by some other act or way than those specially named in the first clause of the statute, it is essential, in order to charge the complete statutory offensе, that the indictment should aver the intent to facilitate the escape of the prisoner, and that such act or way was useful to aid him in escaping, unless it naturally so appears; these being necessary constituents of the criminal act, though mentioned only in the first clause in juxtaposition to the modes of assistance therein specially named. * * * ”
In three other cases, decided subsequent to the Hurst case, Marshall v. State,
In conclusion, and by way of summary, we hold that Count II of the indictment will not support a conviction because it fails to state an offense under § 157 of Tit. 14 in that it does not aver: (1) “what that other thing, act, or way was” which aided or assisted the prisoner to escape; (2) “that it was useful to aid the prisoner’s escape, unless by its very nature it appeared to be so”; and (3) “that it was done ‘with intent to facilitate the escape,’ ” the latter being an indispensable averment. Hurst & Hill v. State, supra.
We reverse and remand this cause to the Court of Criminal Appeals for entry of a judgment and decision in accordance with this opinion.
Reversed and remanded.
Dissenting Opinion
(dissenting).
Haynes did not challenge the legal sufficiency of the indictment by any pleading. He did not argue on original submission to the Court of Criminal Appeals that the indictment was legally insufficient. He first raised this point on application for rehearing in the Court of Criminal Appeals. I think he is late and we should not review the point raised for two reasons. First, I think the opinion of the Court of Criminal Appeals is correct. Seсond, I think the majority incorrectly examines the original record in the Court of Criminal Appeals. Present Rule 39 of this Court does not permit such an examination of the original record.
The allegations in the indictment closely follow thе language of Title 14, § 157, Code of Alabama, 1940. I think the defendant had more than sufficient notice of the charge against him. Certainly the indictment was specific enough that he would be protected against being tried a second time fоr the same offense. That is one of the purposes of an indictment, as I understand the law.
I think Duin v. State,