State v. Clark

32 Nev. 145 | Nev. | 1909

By the Court,

Sweeney, J.:

The appellant, having been tried and convicted of an attempt to escape from a county jail, and sentenced to ten years’ imprisonment, now seeks the intervention of this court for a new trial. He contends that the trial court erred in admitting any testimony in the cause, for the reason assigned that the indictment is fatally defective because it is not specifically alleged in the indictment that the defendant did the acts complained of with the intent to escape, and, further, that the bench warrant, not having been legally issued, was insufficient to place the defendant in legal custody. • A review of the record in this case will show that neither of these positions is well taken. The crime for which defendant was indicted reads thus: "Every person lawfully confined in a county jail, or in the custody of any officer or person, under a lawful arrest, who shall escape or break away from such officer or person, or shall escape from or break out of, or attempt to escape from or break out of, such jail, shall, on conviction thereof, be punished. * * * And in case such person is under arrest, or confined in jail, upon a- charge of felony, and so escape, or break away from, such arrest, or escape from, or break out of, or attempt to break out of, such jail, then, upon conviction, he shall be punished by imprisonment in the state prison not less than one nor more than -ten years.” (Comp. Laws, 4840.)

The indictment, after due entitlement of court and cause, is as follows: "Defendants, C. Clark, Harry May, and W. 0. Grady, above named, are accused by the grand jury of Esme-raída County, State of Nevada, by this indictment found this 4th day of September, A. D. 1908, of a felony, to wit, the crime of attempt to escape from a county jail, committed as follows: Said defendants, C. Clark, Harry May, and IV. 0. Grady, and each of them, on the 1st day of August, A. D. one thousand nine hundred and eight, or thereabouts, and before the finding of this 'indictment, at the County of Esmeralda, State of Nevada, were and each of them was lawfully confined in the county jail of Esmeralda County, State'of Nevada, under an indictment returned by the grand jury of Esmeralda County, State of Nevada, charging them, and each of them, with the crime of burglary, and the said defendants, and each of them, while lawfully confined in the said county jail as aforesaid, at the time and place aforesaid, did wilfully, unlawfully, and feloniously attempt to break out of said county jail, and in pursuance of said attempt did wilfully, unlawfully, and feloniously break out of a cell in said county jail in which they and each of them were confined, and assault and overpower a jailer of said county jail; all of which is contrary to the form, force, and effect of the statute in such case made and provided, and against the peace and dignity of the State of Nevada. A. H. Swallow, District Attorney of Esmeralda County, Nevada.”

This court has held that, where a specific intent is required by statute to constitute the crime, such specific intent, being an essential ingredient of the crime itself, must be alleged and proved beyond a reasonable doubt. (State v. Rodriquez, 31 Nev. 342.) The supreme-court of this state, in line with the overwhelming weight of authority has, however, also held that when the statute forbids the doing of a certain thing, and is silent concerning the intent with which it is done, a person doing the unlawful act forbidden by law is guilty of the crime charged, even though he had no wrongful intent beyond that which is involved in the doing of the acts prohibited. (State v. Zichfeld, 23 Nev. 304, 34 L. R. A. 784, 62 Am. St. Rep. 800.) So, in the present case, admitting but not conceding-, because we believe with the jury otherwise, that the defendant had no intention of escaping, the indictment sufficiently charges and the record substantiates the charges that he did those things charged in the indictment especially made criminal and forbidden by law. (Commonwealth v. Mash, 7 Metc. (Mass.) 472; State v. Voight, 90 N. C. 741; Commonwealth v. Conley, 163 Mass. 539, 40 N. E. 862; Myers v. State, 1 Conn. 502; State v. Anderson, 3 Nev. 256; State v. Johnson, 9 Nev. 178; State v. Angelo, 18 Nev. 425; State v. Goodenow, 65 Me. 30; Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; Davis v. Commonwealth, 13 Bush, 318; Wharton’s Criminal Evidence, 8th ed. sec 725.)

The Supreme Court of Oregon, in passing upon an indictment of a similar nature of crime to the one under consideration, very aptly observes and correctly quotes in support thereof authorities which sustain its position as follows: "The information charges that the defendant assisted Bland in an attempt to escape by doing certain specific acts. As he could not assist in an attempt to escape unless such attempt was actually made, the allegation is sufficient, after verdict, that Bland in fact attempted to escape, and, as an attempt to escape necessarily involves an intent to do so, it follows that he had such an intent. There is, of course, a distinction between an intent and an attempt. Intent is a quality of the mind, and implies a purpose only, while an attempt implies an effort to carry that purpose into execution; but there can be no attempt until there has been an intent. Mr. Bishop says: 'An attempt always implies a specific intent,not merely a general mental culpability. When we say that a man attempted to do a thing, we mean that he intended to do specifically it, and proceeded a certain way in the doing. The intent in the mind covers the thing in full. The act covers it only in part.’ (1 Bish. Cr. Law, 5th ed. sec. 729.) An attempt, therefore, embodies both the intent to do a thing, and a direct ineffectual act done toward its commission. (1 McClain Cr. Law, sec. 222.) Hence the charge of an attempt necessarily includes and is equivalent to a charge of an intent to accomplish what was intended. (Johnson v. State, 14 Ga. 55; Prince v. State, 35 Ala. 367.) We are of the opinion, therefore, that the information sufficiently charges that Bland had an intent to escape.” (State v. Daly, 41 Or. 515, 70 Pac. 707.)

"The single word 'attempt’ carries the double idea of both of an intent and the endeavor to accomplish it; a proposition everywhere held.” (2 Bish. New Cr. Procedure, sec. 91.) The word "feloniously” has been defined by Webster and by innumerable authorities in a legal sense to mean "done with intent to commit a crime!’ and when the word "feloniously” in an indictment is interpreted, it means that the act was done with the intent to commit a crime and with a design on the part of the perpetrator to commit the felony with which he is charged. (State v. Hughes, 31 Nev. 270; State v. Douglas, 53 Kan. 669, 37 Pac. 172; People v. Willett, 102 N. Y. 251, 6 N. E. 301; State v. Noland, 111 Mo. 473, 19 S.W. 715; Phelps v. People, 72 N. Y. 334; People v. Butler, 1 Idaho, 231; People v. Conroy, 97 N. Y. 68; State v. Rechnitz, 20 Mont. 488, 52 Pac. 264; State v. Boyle, 28 Iowa, 522; Hamilton v. State, 142 Ind. 276, 41 N. E. 588; State v. Smith, 31 Wash. 248, 71 Pac. 767; State v. Halpin, 16 S. D. 170, 91 N. W. 605.) The indictment, tested by the requirements of the. law of this state (Comp. Laws, 4208), and the authorities herein cited and reasons given, is sufficient without the specific allegation of intent. As the supreme court of this state in the case of State v. McGinnis, 6 Nev. 109, has properly held that "criminal intent can only be proven as a deduction from declarations or acts, when the acts are established the natural and logical deduction is that defendant intended to do what he'did do, and, if he offers no excuse or palliation of the act done, such deduction becomes conclusive” — the evidence admitted over defendant’s objection which tended to establish the acts of defendant in making the attempted escape as charged in the indictment from which the jury deduced its verdict of guilty, was all properly admitted in evidence. (State v. Rigg, 10 Nev. 288; State v. Angelo, 18 Nev. 425.)

2. The defendant in the present case, while convicted of an attempt to escape from a county jail, was at the time of the outbreak held under an indictment regularly brought against him for burglary. The defendant has not shown any infor-malities or irregularities in' the commitment which would justify this court in presuming that the clerk ’did- not issue the bench warrant complained of in accordance with law. No irregularities appearing, the presumption is that public officers do as the law and their duties require them. (Lawson on Presumptive Evidence, pp. 34, 53.) We believe, however, that the defendant was legally held by the bench warrant issued under sections 4224, 4225, Comp. Laws. Even though conceding appellant’s contention that the bench warrant was irregularly issued, yet the - defendant was legally in custody on the burglary indictment, and hence appellant’s contention, if granted, would avail nothing. The Supreme Court of California in the case of People v. Ah Tung, 92 Cal. 425, 28 Pac. 578, 15 L. R. A. 190, properly stated the law of escape when it said: " An escape is classed as a crime against public justice, and the law, in declaring it to be an offense, proceeds upon the theory that the citizen should yield obedience to the law; that when one has been, by its authority or command, confined in a prison that it is his duty to submit to such confinement until delivered by due course of law, no matter whether he was committed to await a future trial, or as punishment after judgment of conviction, or for any other purpose authorized by law. But, when the imprisonment is unlawful, and is itself a crime, the reason which makes the flight from prison an offense does not exist. In such a case the right to liberty is absolute, and he who regains it is not guilty of the technical offense of escape.”

The indictment being substantially sufficient, and no error appearing to the prejudice of defendant’s rights, the judgment of the lowert court is affirmed.

It is so ordered.