William White v. The State, 13 Tex. 133

Lipscomb, J. The appellant was indicted for “ that Wiil- “ liam White, late of the county aforesaid, afterwards, and “whilst the said Aikens G. Shultz was and remained in the <£ custody of said J. B. Barry, Sheriff of the county aforesaid, 46 to wit: on the eighteenth day "of February, in the year of “ our Lord eighteen hundred and fifty-two, in the county “ aforesaid, by giving counsel and advice to the said Aikens “ Gr. Shultz, feloniously and unlawfully did aid and assist “the said Aikens G. Shultz to escape from the custody “ of J. B.

Barry, Sheriff aforesaid, contrary to the form of “ the statute in such cases made and provided,” &c. 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 constraction. The previous Articles, and the one we are discussing, show, that aid must be given by something more substantial than mere words of counsel or advice, and clearly point to physical aid.

The indictment does not charge the prisoner, with having the custody of the prisoner who escaped; if it had, and had charged him with voluntarily permitting the escape, evidence of counseling and advising the escape, would have went far, if not conclusively, to show that he had permitted it, under

Article 549, which provides the punishment for such offence. Or if, having the custody of the prisoner, he had negligently permitted him to escape, and had been indicted for that offence, under

Article 551, such counsel and advice would have been evidence of a want of due diligence in guarding the prisoner. 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 t£ his will.” What right had the Judge to tell the jury that it had been proved 3 or what had been proved ? But this is not the only objection to this charge. It shows that evidence was received that ought not, and could not, legally, have been received.

There was no averment in the indictment that the escaped prisoner ever had been in the custody of the defendant; he was not indicted for either voluntarily permitting, or negligently allowing a prisoner committed to his custody, to escape. It is clear that he was indicted for one offence, and convicted of another, that is, if there was any offence known, to the law, charged in the indictment. For the errors we, have noticed the judgment must be reversed and the prosecution dismissed. Reversed and dismissed..