13 Tex. 133 | Tex. | 1854
The appellant was indicted for “ that Wiil-
The prisoner pleaded not guilty, and there was a verdict and judgment against him, and he appealed. We have only recited the charging part of the indictment, i. e.: the offence charged,“the giving counsel and advice,” and that it was contrary to the statute. We have been unable to find the statute under which the charge made in the indictment can be sustained, and are at a loss to conceive how such a charge as counseling and advising, could be supposed to be contrary to the statute in such cases made and provided. Article 546, Hartley’s Digest, prescribes the punishment for conveying a tool, or any other thing into a place of confinement, or affording aid in any manner, with intent that any prisoner may escape therefrom, but without any escape.
Article 547 provides punishment for conveying a tool or weapon or any thing, to any prisoner convicted of any offence punishable by death or confinement to hard labor in the Penitentiary. Article 548 provides punishment for aiding in any manner in the escape of any prisoner, committed before or after conviction, to any place of confinement for any criminal offence not capital. This is probably the Section of the law, that the prosecuting attorney had in view in drafting the indictment ; but it would only be by the most liberal intendment, that this Article could be construed to embrace counseling and advice, to be aiding, within the meaning of the law. Humanity, and the acknowledged rules of construction of the Criminal Law, alike forbid any such latitude of con
But if the offence, as charged, had been specially expressed in the statute, we should have been compelled to reverse this judgment, on the charges given by the Court, and excepted to by the defendant’s counsel. The Court charged the jury, 66 that if they believe from the testimony the prisoner in any ££ manner aided the escape of Aikens Gr. Shultz, they must 61 find him guilty.” We have again and again ruled that in civil cases the allegada and probato.must correspond and agree; that the enforcement of this rule was demanded by the interest and rights of the parties; and surely the reason of this rule would be stronger where the character and the liberty of the citizen was involved. The indictment having specially designated the manner in which this supposed aid was extended, to wit: by advising and counseling, it would be preposterous to suppose that proof could be received, that an axe, or any other impliment, had been furnished the prisoner for the purpose of cutting his way out of prison.
The second charge, however, is still more remarkable and objectionable. The Court charged, “ That it having been “ proved by the State that the said Shultz was legally in tk<§ 66 custody of defendant, and that he made his escape, it do* “ volved on the defendant to show that said escape was against
Reversed and dismissed..