delivered th¿ opinion of the Court:
.The plaintiffs in error, Ann Patrick and Mabel King, together with one Thomas Jackson, were jointly indicted by the grand jury of White county. The indictmеnt has three counts. In the first it is charged that the parties named “did then and there, unlawfully and feloniously, attempt to set at liberty аnd rescue one Green Patrick from the common jail of said White county, the said Green Patrick being then and there confined in the said jail upon the charge of murdering one Charles Blue.” The second count differs from the first only in the form of its phraseology. The third count charges an attempt to rescue Green Patrick, so being in jail, etc. Jackson pleaded guilty.
Uрon the trial of the plaintiffs in error it was proved that Green Patrick was in the jail of White county on the charge of having murdеred Charles Blue; that plaintiffs in error procured certain saws, knives and a file, and delivered them to Thomas Jackson, with thе intention that he should deliver them to Green Patrick; that Jackson then took the saws, knives and file to the jail of White county, in thе night time, and attempted to deliver them to Green Patrick, but being discovered by-the jailer before he had accomрlished his purpose, he was prevented.
After the conclusion of the argument of the case, the State’s attorney was allowed by the court to strike out of the indictment the words “and rescue,” and to enter a nolle prosequi as to the сharge of “attempt to rescue.” The State’s attorney then also entered a nolle prosequi as to the second and third counts of the indictment. The State’s attorney has no authority to amend an indictment. The statutes allowing amendments do not apply to criminal cases.' (2 Hawkins’ Pleas of the Crown, 336, b. 2, sec. 97; 1 Bishop on Crim. Proc. sec. 705.) There is nothing in our statute that purports to authorize any one to change or modify the language of an indictment as presented by the grand jury. The plаintiffs in error should therefore have been tried upon the indictment as it was presented by the grand jury, and it was error for the cоurt to allow the State’s attorney to strike out of the indictment the words “and rescue,” and to require the jury to render a verdict under the indictment as thus amended.
Plaintiffs in error requested the court to instruct the jury as follows:
“That the statutes of the State of Illinois make a distinction between an attempt to set at liberty a person in the custody of an officer, and an attemрt to convey tools to a person confined in jail, and that a person indicted for one of such offenses can not be convicted of the other.
“The court instructs the jury, for the defendants, that although you may believe, from the evidenсe, that the defendants on trial did offer to pay Jackson to take tools to the jail for Green Patrick, and loanеd him money to buy the file testified to, yet you should find them not guilty.”
But the court refused to do so, and the exception to this ruling presents the only question discussed in the arguments before us.
The jury, by their verdict, found the plaintiffs in error each “guilty of attempting to set at liberty Grеen Patrick, in manner and form as charged in the first count of the indictment, ” and fixed their respective punishments at confinemеnt in the penitentiary for the term of one year, and the payment of a fine of one dollar.
The conviction is claimed to be under section 87 of the Criminal Code, (Rev. Stat. 1874, chap. 38, p. 364,) which reads thus: “Whoever sets at liberty or rescues, or attempts to set at liberty or rescue, a person charged with the commission of any capital offense or crimе punishable by imprisonment in the penitentiary, before the conviction of such person, shall be imprisoned in the penitеntiary not exceeding five years,, and fined not exceeding $1000.” The question therefore necessarily arises, what constitutеs an “attempt to set at liberty” a prisoner? The statute does not define “an attempt,” and we must hence resort to the common law to ascertain what, in a legal sense, is its meaning. Bouvier, in his dictionary, (vol. 1, p. 138,) says: “-An attempt to commit a сrime is an endeavor to accomplish it, carried beyond mere preparation but falling short of execution оf the ultimate design, in any part of it.” And Wharton says: “To make the act an. indictable attempt, it must be a cause, as distinguished from a condition.” 2 Crim. Law, (7th ed.) sec. 2693. See, also, People v. Murray,
It is provided by section 92 of our Criminal Code, (Rev. Stat.. 1871, chap. 38, p. 365,) that “whoever conveys * * * into; any jail * * * any instrument, tool, or other thing adapted ■ or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner, * * * , shall be punished” as therein provided,—but which is only by confinement in the county jail and by fine. And since, by section 273 ■of the same code, all attempts to commit offenses prohibited by law are indictable, and punishable by confinemеnt in the «county jail and by fine, it would seem clear that the offense here proved is that contemplated by these seсtions, and not * that contemplated by section 87 of the Criminal Code, supra, and that the punishment should not have been by cоnfinement in the penitentiary, but by confinement in the county jail and fine, only. The circuit court therefore erfed in refusing to give the instructions asked, and also in overruling the motion for a new trial.
The judgment is reversed, and the cause remanded to the. ■court below for further proceedings in conformity with this opinion.
Judgment reversed.