Wilson v. State
61 Ala. 151
Ala.
1878
Check Treatment
STONE, J.

Indictments, under our statute, Code of 1876, section 4785, “ must state the facts constituting the offense in ordinаry and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of cеrtainty which will enable the court, on conviction, to pronounce the propеr judgment.” The Code contains many forms of indictment, which were intended to supplant the verbоse forms used at common law; and the statute, Code ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​​‌​‌​​‌​‌‌‌​‌​​​​‌​​​​​​​‌‌​‌​‍of 1876, § 4824, declares that these “forms оf indictments, in all cases in which they are applicable, are sufficient; and analogous forms may be used in other cases.” Many of these forms, tested by common law principles, are wanting in many material averments, yet, we have uniformly held they are sufficient. “ Where a statute creates a new offense, unknown to the common law, and describes its сonstituents, it is sufficient to charge the offense in the language of the statute. 1 Brick. Dig. 499, § 734.

*154The defendant was indicted under section 4130 of the Code ■ of 1876. Aiding a prisoner to escape, who was charged with a felony, was itself a felony at common law, because the pеrson aiding thereby made himself an accessory after the fact. 2 J3ish. Cr. Law, § 1402. To constitute this offense, the person rendering the assistance must have known the crime, the escaрe from the punishment of which he aided, had been committed. This knowledge on his part was аn indispensable ingredient, without which he could not be a criminal accessory after the fact. The statute under which this defendant was indicted is not merely declarative of the common law. It creates a new offense, ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​​‌​‌​​‌​‌‌‌​‌​​​​‌​​​​​​​‌‌​‌​‍substantive and not accessorial in its chаracter, and makes it a felony. It punishes not only him who aids in an escape from confinement under a charge of felony, but every person who attempts to render such аssistance, by conveying “into the county jail, or into any other lawful place of confinement, any disguise, instrument, arms, or other thing useful to aid any prisoner to escape, with the intent to facilitate the escape of any prisoner therein lawfully confined under а charge or conviction of felony; or who, by any other act, or in any other way, assists such prisoner to escape, whether such escape be attempted, оr effected, or not.” The offense has three main ingredients; a prisoner confined under a lаwful charge or conviction ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​​‌​‌​​‌​‌‌‌​‌​​​​‌​​​​​​​‌‌​‌​‍of felony, the conveying into the jail, &c., of some disguise, instrument, <frc., useful to aid the еscape, and the intent to facilitate the' escape of such prisoner. These, the statute declares, constitute the offense, and it is not for us to add to them. The рrisoner thus confined may make no attempt to escape — may not even know the disguise or instrument has been conveyed into his prison. His participation or knowledge can neither add to nor diminish the criminality of the act of conveying the’alleged disguise or instrument into the prison. The statute defines the offense fully, and does not affirmatively require knowledge of the offense or grade of offense with which ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​​‌​‌​​‌​‌‌‌​‌​​​​‌​​​​​​​‌‌​‌​‍the prisoner is charged. The faсt that the prisoner is in jail, or in other place of confinement, and needs, or is supposed to need some instrument or disguise to facilitate his escape, doubtless satisfied the legislature that any one conveying such instrument or disguise into the prison with intent to facilitate such prisoner’s escape, must have known the confinement was involuntary, and on a charge of grave import. Such aid is unlike that furnished to an offender at large, fleeing from arrest. Assistance rendered in the latter case is innocent charity, if rendered in ignorance that the *155person assisted had committed a crime, ‍​‌​‌‌‌‌​​​‌​​‌​‌‌​​‌​‌​​‌​‌‌‌​‌​​​​‌​​​​​​​‌‌​‌​‍and was trying to' avoid arrest.

The indictment in this case conforms to the statute. It avers that Jones and Johnson, alias Cunningham, wеre, at the time, confined in the jail of Dallas county under a charge of the criminal оffense of burglary, and that defendant did convey into the county jail of Dallas county an auger, an instrument useful for the purpose, with the intent to aid and facilitate their escaрe from said confinement in said jail. Every species of burglary under our statutes is a felony.— Code of 1876, §§ 4343, 4344. The indictment avers that the prisoners were confined on a charge of burglary. This is an averment that their imprisonment was under a charge of felony. The indictment is sufficient, and the judgment of the Circuit Court is affirmed.