State v. Duff

• Decision Date: 19 October 1909
• Citation: 122 N.W. 829,144 Iowa 142
• Parties: STATE OF IOWA v. NELSON DUFF, Appellant
• Court: Iowa Supreme Court

122 N.W. 829

144 Iowa 142

STATE OF IOWA v. NELSON DUFF, Appellant

Supreme Court of Iowa, Des Moines

October 19, 1909

Appeal from Winneshiek District Court.--HON. L. E. FELLOWS, Judge.

THE defendant was convicted of the crime of assisting a prisoner to escape from the jail of the county, and appeals.

Affirmed.

E. R Acres and M. J. Carter, for appellant.

H. W Byers, Attorney-General, and Charles W. Lyon, Assistant Attorney-General, for the State.

OPINION

SHERWIN, J.

The evidence tended to show that the defendant delivered to one Frank H. Curb, who was lawfully detained in the jail of Winneshiek County, four steel saws, with which the said Curb attempted to effect his escape from said jail. The defendant offered evidence to the effect that Curb had said to a witness by the name of Riley that he would have his wife bring him saws with which to cut away the bars that detained him. In rebuttal the State was permitted, over the defendant's objection, to show by Mrs. Curb, the wife of Frank H. Curb, that she had not delivered any saws to her husband while he was in jail. Her evidence on this subject was clearly competent in rebuttal of any inference which the jury might have drawn from the relation existing between the witness and Frank H. Curb, and from the testimony offered by the defendant above referred to.

John Biaess, who was deputy sheriff of the county, testified as to a conversation that he had had with Duff, and in connection with his testimony, as we understand the record, a notice in writing to the defendant, stating that one Kenyon would be introduced as a witness against him, and relating the substance of the testimony that would be given by him, was offered and received in evidence. Complaint is made of this but as no objection to the testimony or exhibit appears in the record, it requires no further consideration.

The court gave no instruction on the subject of an accomplice, and the defendant makes the claim that there was error in neglecting to so instruct; his position being that Curb and he were accomplices in assisting Curb to escape. A general rule for determining whether a witness is an accomplice or not is to determine whether he could have been indicted and convicted of the same crime. It will be remembered that Curb was the party in jail whom the indictment charged the defendant with having unlawfully assisted to escape, and it is very evident to us that Curb could not have been tried on a charge of having assisted himself to break jail. While it is true that section 4898 of [122 N.W. 830] the Code makes it a crime to break jail, and provides punishment therefor, the crime for which the defendant was indicted and convicted was an entirely separate and distinct one, defined and made punishable by section 4894 of the Code.

It is undoubtedly true that if Curb had assisted some other prisoner confined in the jail to escape, and at the same time had himself escaped, he would be an accomplice with the party whom he assisted, but it is the general rule, we think, that where a prisoner is aided to escape by an outside person, the prisoner is not an accomplice of the person, or persons, who assisted him in making his escape. Such is the holding in Ash v. State, 81 Ala. 76 (1 So. 558); Peeler v. State, 3 Tex. Ct. App. 533, and the same doctrine is announced in 12 Cyc. 448. We are of the opinion, therefore, that no instruction on the subject of accomplice was required.

The trial court sentenced the defendant to a term in the penitentiary under the indeterminate sentence statute, and as the punishment provided by law for the crime of which the defendant was convicted is not to exceed ten years in the penitentiary, that term was the maximum punishment which could be inflicted. The defendant says that the statute under which the defendant was sentenced is unconstitutional and void, "first, because it takes away the power vested in the courts, and vests it in officers appointed by the Governor; second, it delegates the power of pardon and commutation of sentence vested by the Constitution in the Governor to other persons." The defendant says "that the statute under which the defendant was sentenced not only forced the district judge to pass sentence for ten years, but forced him to hand the defendant over to the control of three men, who may deprive the defendant of his liberty and citizenship for many years." We are unable to see the force of this contention. That the Legislature has the power to fix the punishment for crime with the limitation only that it be not cruel or excessive, will hardly be seriously questioned. And if the Legislature has such power, it may surely fix a definite and certain term of imprisonment for...