Merrill v. State
| Decision Date | 30 October 1933 |
| Docket Number | Criminal 791 |
| Citation | 42 Ariz. 341,26 P.2d 110 |
| Parties | HERBERT MERRILL, Appellant, v. STATE, Respondent |
| Court | Arizona Supreme Court |
APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.
Mr Jacob Morgan, for Appellant.
Mr Arthur T. La Prade, Attorney General, and Mr. James R McDougall, Assistant Attorney General, for the State.
Appellant was convicted of an attempt to rescue a prisoner and given an indeterminate sentence in the state prison. He appeals from this judgment and sentence.
The information on which he was prosecuted names the crime it accuses him of committing as "Attempting to Rescue a Prisoner, a Felony," and then proceeds in this language:
"The said Herbert Merrill on or about the 10th day of January, 1933, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully, unlawfully, knowingly and feloniously attempt to rescue from the County Jail of Maricopa County, Arizona, one Albert De Raey, who was then and there a prisoner lawfully in custody in the County Jail of Maricopa County, Arizona, upon a conviction of Attempted Burglary, a felony, by then and there bringing into and introducing into said jail for the use of said Albert De Raey certain acid, the name of said acid to the County Attorney being unknown, with the intent that said acid be used by the said Albert De Raey in cutting and destroying the bars to a window of the said jail so that the said Albert De Raey, after having cut and destroyed the said bars, could escape from said jail, the said Albert De Raey having on the 2nd day of January, 1933, requested the said Herbert Merrill to bring and deliver to him, the said Albert De Raey, the said acid for the purpose of using the same to cut and destroy the said bars."
The information was drawn under section 4537 of the Revised Code of 1928, which reads as follows:
etc.
A demurrer upon several grounds was interposed to this information and among these was the general one that it did not state facts sufficient to constitute a public offense. This was overruled and the first assignment attacks this action of the court. It is contended that the information attempts to charge two offenses, namely, an attempt "to aid" a prisoner to escape and an attempt "to rescue" a prisoner from the county jail, but succeeds in neither. The court, however, held that it did state the facts necessary to constitute an attempt to rescue the prisoner, De Raey, from the county jail. In naming the crime of which it accuses the appellant the information uses the term, "Attempting to Rescue a Prisoner, a Felony," and in designating a few lines lower the thing he "wilfully, unlawfully, knowingly and feloniously" did on January 10, 1933, repeats it. The use of these terms in both instances, however, merely gives the name by which the information characterizes the crime it charges, but does not constitute that charge and is not decisive of the question whether it is in fact stated. That portion of the information which sets forth the facts, the acts performed by appellant, must be looked to for this purpose, and if these do not constitute that offense but do show a violation of some other portion of the Penal Code, the information is still sufficient, because it charges only one crime and that is the one the pleaded facts show, it being immaterial that the information improperly designates it. "The name of the crime, however," to use the language of State v. Culbreath, 71 Ark. 80, 71 S.W. 254, "is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment." O'Halloran v. State, 31 Ga. 206; Brady v. Territory, 7 Ariz. 12, 60 P. 698. In 31 C.J. 669, par. 189, is found this statement which is supported by many authorities:
"So, too, an indictment is good as charging the offense which the facts set forth in the indictment constitute under the law, notwithstanding an improper characterization thereof in the caption."
The facts which the information pleads to constitute the offense it characterizes as "attempting to rescue a prisoner" are these: On January 10, 1933, appellant at the request of Albert De Raey made on January 2, 1933, brought and introduced into the Maricopa county jail for the use of said Albert De Raey a certain acid with the intent that it would be used by De Raey in cutting and destroying the bars of the window of the jail so that he could, after cutting and destroying the bars, escape therefrom. Do these facts show an attempt by appellant to rescue De Raey? "Rescue at common law is the forcibly and knowingly freeing another from arrest or imprisonment," according to 54 C.J. 696, and under the authorities is perpetrated only when the prisoner is released or delivered without any efforts of his own to free himself. It implies inaction on his part and deliverance solely through the acts of another. In this respect it differs from the offense of assisting a prisoner to escape or in an attempt to escape, or an attempt to do either. These are committed when a third person performs acts that help, or tend to help the prisoner's efforts in his own behalf. One can only assist another in doing something that other is himself endeavoring to do. The acts of the prisoner and those of the other person must supplement each other.
Such was the holding of the court in People v Murphy, (Cal. App.) 20 P.2d 63. Murphy had been convicted of assisting the escape of a prisoner under these circumstances: One Nathan, while sitting in the front seat of Murphy's car quite intoxicated, had been arrested by a police officer named Pursley and immediately thereafter taken some fifty feet away to a police telephone box where he sat down quietly while Pursley phoned for a police car. As the officer finished telephoning and turned from the box, Murphy, who had approached him in the meantime, knocked him to the pavement unconscious with a wrench he had taken from his tool kit, whereupon Nathan and Murphy left and were nowhere around when Pursley regained consciousness. Both, however, were arrested some two hours later and Murphy was shortly thereafter accused and subsequently convicted of assisting...
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