36 P.2d 530 | Idaho | 1934
Appellant was convicted of the crime of assisting a prisoner to escape, from which judgment of conviction this appeal is prosecuted.
Without reciting all the evidence as disclosed by the record, it is my opinion that there is sufficient evidence, although conflicting, to establish the following material facts, namely: that the prisoner Lane had stolen from the county assessor's office the sum of $831.49; that appellant was contacted by Lane at the Bonneville county courthouse on the fourth day of June, 1933, at which time he delivered to appellant the stolen money; that on June 5th, after delivering coal by truck under the direction of one Taylor, *784 deputy sheriff and supervisor of labor to be performed by the inmates of the county jail, Lane proceeded to the home of appellant and informed him that he was going to "beat it" and asked him for the money and thereupon received from him $5 out of the money theretofore delivered; that shortly thereafter Lane stole a car belonging to one Rose and proceeded to Blackfoot, approximately twenty-five miles south of Idaho Falls, where he purchased gasoline and oil out of the money so received from appellant and then proceeded to Pocatello, where he was apprehended and upon being searched was found to have in his possession approximately $3.76.
The controlling question for determination is whether there is sufficient evidence to uphold the verdict of the jury finding appellant guilty of the crime charged, under and within the meaning of I. C. A., section
Appellant contends that, conceding he received the stolen money from the prisoner Lane and that he thereafter delivered $5 thereof to Lane, and in fact conceding every other fact and circumstance connected with the transaction, nevertheless appellant could and would not be rendered criminally liable under the statutes for assisting Lane to escape for the reason that the escape was consummated immediately upon Lane's leaving the visual presence of his custodian and was thus fully completed regardless of what was done by appellant thereafter.
A proper determination of the question presented is not altogether free from difficulty and affords opportunity for differences of opinion and discussion. The jury, by its verdict, must have concluded that when Lane called on appellant and told him that he thought they had his fingerprints and that he "was going to beat it," and the money was then delivered to him by appellant, it was a further inducement and an aid to Lane in consummating his escape and was the means whereby he assisted himself in his escape. It was the money that he received, with which he purchased *785
gasoline and oil to operate the stolen car, that enabled him to more effectively carry out his escape. Lane testified that when appellant gave him the $5 he "beat it" and appellant told him: "You get two or three states away" and he would send him the balance of the money, appellant advising him "it wouldn't be a good idea to take all of it, because if I got caught I would just be out that," meaning the balance of the money. I am not inclined to the view that Lane's escape was consummated or completed when he left the county jail or when he went beyond the visual presence of his custodian. Conceding that there was a technical escape at the moment he left the jail and the visual presence of his custodian, such technical escape did not develop into an actual escape until after he received the aid, encouragement and assistance from appellant. (Cornell v. Mason,
Givens, Morgan, Holden and Wernette, JJ., concur. *787