Marshal v. State

• Decision Date: 09 February 1899
• Citation: 120 Ala. 390,25 So. 208
• Parties: MARSHAL v. STATE.
• Court: Alabama Supreme Court

25 So. 208

120 Ala. 390

MARSHAL v. STATE.

Supreme Court of Alabama

February 9, 1899

Appeal from criminal court, Pike county; E. B. Wilkerson, Judge.

Sam Marshal was convicted of assisting a prisoner to escape, and appeals. Affirmed.

The following was the indictment: "The grand jury of said county charge that before the finding of this indictment Sam Marshal did intentionally assist Gus Raimer, a prisoner lawfully confined in the county jail of Pike county on a charge of a misdemeanor, to escape therefrom by drilling or prizing out a hole through the walls of said jail, against the peace and dignity of the state of Alabama." To this indictment the defendant demurred upon the following grounds: (1) "Said indictment fails to aver that the act of drilling or prizing out a hole through the walls of the jail was done with the intent to facilitate the escape of Gus Raimer from said jail." (2) "Said indictment fails to aver that the act of drilling or prizing out a hole through the walls of said jail was useful to aid or assist said Gus Raimer in escaping from said jail." The demurrer to the indictment was overruled, and the defendant duly excepted. This ruling of the trial court is the only one presented for review on the present appeal.

Chas. G. Brown, Atty, Gen., for the State.

HARALSON, J.

The statutory offenses created by sections 4711 and 4712 of the Code are different, the one a felony and the other a misdemeanor; and from the terms of the two sections it is obvious, that an indictment under the first would necessarily contain averments not required in the latter. What averments are necessary in an indictment under section 4711, was very fully considered in Hurst v. State, 79 Ala. 55.

The indictment in this case was found under said section 4712, describing the offense created thereunder, in the language of the statute, or words conveying the same meaning, and alleges the fact in the doing of which the offense consists. Code, §§ 4896, 4898; Grattan v. State, 71 Ala. 344; Wilson v. State, 61 Ala. 151.

The ground of demurrer taken to the indictment,-that it "fails to aver that the act of drilling or prizing out a hole through the walls of the jail was done with the intent to facilitate the escape of Gus Raimer from said jail," is not well taken, but if applicable in any case, it would be to an indictment under section 4711. The demurrer was properly overruled.

Affirmed.