State v. Lawrence, 43 Kan. 125

State v. Lawrence

43 Kan. 125 | Kan. | 1890

The opinion of the court was delivered by

Johnston, J.:

James T. Lawrence was prosecuted under § 177 of the crimes act, for aiding a prisoner to escape from legal custody. The sufficiency of the information is the only question presented. It sets out fully and sufficiently that an offense had been committed by one Spencer; that he had been *128arrested and taken before a magistrate, who adjourned the hearing until a later time; and that the prisoner, failing to give the required recognizance, was duly committed to the jail of Barber county until the day fixed for the examination; that under this warrant the under-sheriff took the prisoner into custody, and placed him in charge of a guard until the prisoner could be taken to and confined in the county jail; that while he was in charge of the guard, the defendant, Lawrence, unlawfully and feloniously aided and assisted him to escape; and that by means of the assistance rendered by defendant, the prisoner in fact did escape. It thus appears that the information sufficiently states the custody of the prisoner, and that it was lawful; but while it alleges that the defendant aided in the escape, it fails to charge that he had knowledge that Spencer was in legal custody, and does not set out the acts done which aided the prisoner to escape. In the absence of these allegations the information was defective, and the motion to quash was properly sustained. An indispensable ingredient of the offense sought to be charged is the knowledge of the accused that the person assisted was in legal custody; and unless this knowledge is alleged, or the acts charged to have been done by the defendant necessarily imply knowledge, an offense is not adequately pleaded. A person may do many things which would aid a prisoner in an escape without any criminal intent or liability. If he should receive and entertain one for a night, in ignorance that his hospitality was extended to a fugitive criminal, or if he should overtake him on a highway and innocently give him a ride, he might materially aid the prisoner to escape, but certainly he would not be guilty of wrong, nor punishable under the statute. A well-meant hospitality or an innocent charity should not subject a person to criminal prosecution and punishment; but before an act can be held to be criminal, it must be done with a criminal intent. (The State v. Fry, 40 Kas. 311.) If the acts done by way of assistance were alleged, as they should be, they might be of such a character that guilty knowledge would necessarily be inferred, and an express allegation of such knowledge might *129not be essential. For instance, if the defendant had furnished a prisoner confined in the jail instruments which could only-have been intended to facilitate an escape, or had broken the prison door, or had forcibly assaulted or obstructed an officer who had a prisoner in charge, an express allegation of knowledge that the prisoner was in legal custody might not be necessary; but where the acts done are in their nature innocent, such knowledge should be stated. An information which does not allege the acts of assistance rendered, and also fails to charge a knowledge which would make the intent criminal, is bad. (Commonwealth v. Filburn, 119 Mass. 297; The State v. Hilton, 26 Mo. 199; 2 Bishop, Crim. Proc., §945.) In the present case, the prisoner was not in jail, nor yet in the immediate charge of one known as a public officer. He was in charge of a private individual, designated for the time being as a guard, and hence there was a still greater necessity that the acts done by the defendant to aid in the escape, or that the defendant had knowledge that Spencer was in legal custody, should be alleged.

The judgment of the district court will be affirmed.

All the Justices concurring.