State v. Carivey

• Decision Date: 21 October 1925
• Docket Number: 82.
• Citation: 129 S.E. 802,190 N.C. 319
• Parties: STATE v. CARIVEY.
• Court: North Carolina Supreme Court

129 S.E. 802

190 N.C. 319

STATE v. CARIVEY.

No. 82.

Supreme Court of North Carolina

October 21, 1925

Appeal from Superior Court, Halifax County; Devin, Judge.

Mack Carivey was convicted of an attempt to commit crime of rescue, and he appeals. No error.

Indictment held not to charge crime of "escape," "prison breach," nor "rescue," but to charge crime of "attempt to rescue."--

Language in indictment held to charge crime of attempt to commit rescue "ex vi termini."--Id.

Defendant was convicted and sentenced under the following bill of indictment, and appealed to the Supreme Court:

"The jurors for the state, upon their oath, present that on the 11th day of January, 1925, at Roanoke Rapids, in said county, one W. D. Johnson was undergoing lawful imprisonment in the common jail to await his trial on the charge of operating an automobile while under the influence of intoxicating liquor upon the public highways of said county, whereupon Mack Carivey and Richard Savage, late of Halifax county, on the 11th day of January, 1925, at and in the county aforesaid, did then and there well knowing these premises, and with the intent that the said W. D. Johnson should elude justice and escape out of the said jail, and go at large, unlawfully, willfully, and feloniously enter the outside door of said jail and remove the levers which were used to fasten the doors inclosing and confining the prisoners in said jail, against the form of the statute in such case made and provided, and against the peace and dignity of the state.

R. Hunt Parker, Solicitor."

The state's evidence was, in substance:

"One Dudley Johnson was confined in the town jail of Roanoke Rapids under proper papers charging him with driving an automobile while intoxicated. The jail was the city lockup at Roanoke Rapids. It consisted of an outer wall of brick and an inner defense of steel, which was separated from individual cells by an interval which is called a hall in the case. There was a door entering the brick wall, and then a door which opened through the steel defense into the hall, and then doors to each individual cell. The defendant in this appeal went with Richard Savage on the night of January 11, 1925 to this place with the intention to get Dudley Johnson out. Savage had with him a key which unlocked the outer door, and he and the defendant entered the jail there. They could not, however, open the door to the steel inclosure. After working with it for a while, and finding they could not, they reached in and moved the lever so that Johnson could come out of his individual cell into the hall, leaving him, Johnson, however, confined within the limits of the steel inclosure. When the officers went to the lockup the next morning, they found Johnson in this hall and out of his cell. Upon their asking an explanation, he accounted for his being out of the cell as stated herein."

Travis & Travis, of Halifax, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

CLARKSON J.

The defendant in his brief says:

"There was only one exception, and that was to the sufficiency of the bill of indictment. After verdict, the defendant moved in arrest of judgment on the ground that the bill of indictment does not sufficiently charge defendant with the crime of 'Escape,' and does not sufficiently charge defendant with any crime under the law. * * * Clearly this bill does not charge an escape. It does not charge that there was an escape, and in fact there was none."

In 2 Bishop on Criminal Law (9th Ed. 1923) § 1065, subsec. 3, it is said:

"The word 'escape' has two separate meanings in the law. One is the allowing, voluntarily or negligently, of a prisoner lawfully in custody to leave his confinement. The other is the going away, by the prisoner himself, from his place of lawful custody, without a breaking of prison."

In State v. Ritchie, 107 N.C. 858, 17 S.E. 251, it is said:

"An escape is defined: 'When one who is arrested gains his liberty before he is delivered in due course of law.' 1 Russ. Crimes, 467. And by another eminent authority, tersely, as 'the departure of a prisoner from custody.' 2 Whart. Cr. L. § 2606. These definitions are cited and approved by Smith, C.J., in State v. Johnson, 94 N.C. 924."

We do not think the bill charges an escape. The only question for our decision, under the bill of indictment and evidence, is: Has defendant been convicted of any crime?

It is said in Re Westfeldt, 188 N.C. 709, 125 S.E. 534:

"The charge of the court not appearing in the record, it is to be presumed that the court below charged the law in accordance with the evidence."

The crime is not prison breach; that is defined in 2 Bishop, supra, § 1065, subsec. 1, as follows:

"Prison breach is a breaking and going out of prison by one lawfully confined therein."

C. S. 4404, declares:

"If any person shall break prison, being lawfully confined therein, or shall escape from the custody of any superintendent, guard or officer, he shall be guilty of a misdemeanor."

We think the crime of which defendant is charged, and of which he has been convicted, is an attempt to commit the crime of rescue. Rescue is defined in 2 Bishop, supra, 1065, subsec. 2:

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