Johnson v. State, 60 So. 973

Johnson v. State

60 So. 973 | Ala. Ct. App. | 1913

WALKER, P. J.

Each count of the indictment charged that the defendant, with the intent to aid and facilitate the escape of a named person, who, it was alleged, was lawfully confined under a charge of felony, prized open the bars of a window in the room of the jail in which such person was at the time confined. It was not essential to the sufficiency of the indictment as a charge of the commission of the statutory offense (Code, § 6870) that it contain a specific averment to the effect that the act alleged to have been done by the defendant was useful to aid the prisoner in escaping, as the act alleged — the prizing open of the bars of a window of the room in which the prisoner was confined — in its very nature imports usefulness to the prisoner in aiding him to escape. — Walker v. State, 91 Ala. 32, 10 South. 30. Thé indictment was not subject to demurrer on either of the grounds assigned against it.

*91An exception was reserved to the following statement made by the court in the course of its oral charge: “I say that it is not necessary that the defendant should have actually performed manual labor, or prized the bar, hut if there was a conspiracy, and he entered into it for the purpose of aiding or assisting the escape of other felons, then he would have been guilty of aiding and assisting.” In the argument of the counsel for the appellant it is not claimed that this was a misstatement of the rule of law as to one’s criminal responsibility for the acts of others done in furtherance of a conspiracy to which he was a party (Morris v. State, 146 Ala. 66, 88, 41 South. 274); but the criticism is that the defendant’s participation in a conspiracy to aid or assist in the escape of other felons was hypothesized, and that it was stated that the defendant would have been guilty if he so participated, and it is insisted that the court in so stating fell into error, because the only charge made in the indictment was in reference to the defendant’s aiding the escape of one who was alleged to be, .not a felon, but a person who was in confinement on a charge of felony. We cannot on such a ground say that there should be a reversal because of the statement excepted to. The court did not in that statement affirm that, if the facts hypothesized were found to be true, the defendant was guilty of the offense charged in the indictment, or that he should be convicted, but merely that.he was guilty of aiding and assisting. On the hypothesis stated, he was so guilty, and it cannot be said that the statement of the court to that effect was erroneous. It seems that any mis--leading tendency that statement may have had must have been corrected by written charge “D,” which was given at the request of the defendant.

*92Similar criticisms are aimed at other parts of the court’s oral charge to which exceptions were reserved. We find nothing to support such criticisms except the obviously inadvertent use by the court of the word “felon” to describe the person whose escape was alleged in the indictment to have been aided by the defendant. As the' evidence without conflict showed that at the time of the trial that person had been convicted of murder, and in view of the faict that the court gave written charge “D,” requested by the defendant, we cannot conclude that the defendant was prejudiced by the court’s referring to such person as a felon.

There is a palpable lack of merit in other exceptions reserved by the defendant.

We find no prejudicial error in the record.

Affirmed.