State v. Purcell

• Decision Date: 13 February 1923
• Docket Number: No. 35264.,35264.
• Citation: 191 N.W. 849,195 Iowa 272
• Parties: STATE v. PURCELL.
• Court: Iowa Supreme Court

195 Iowa 272

191 N.W. 849

STATE

v.PURCELL.

No. 35264.

Supreme Court of Iowa.

Feb. 13, 1923.

Appeal from District Court, Woodbury County; W. G. Sears, Judge.

Appellant was indicted for the offense of aiding and assisting prisoners to escape from jail. He was convicted and appeals. Affirmed.H. I. Brouillette, Foster G. Iddings, and Ward R. Evans, all of Sioux City, for appellant.

Ben J. Gibson, Atty. Gen., John Fletcher and Neill Garrett, Asst. Attys. Gen., and O. T. Naglestad, Co. Atty., of Sioux City, for the State.

FAVILLE, J.

It appears from the evidence that the appellant, with others, was confined in the jail of Woodbury county. On the morning of February 27, 1922, the defendant and other prisoners escaped from said jail. The escape was effected by sawing bars off the cell in which the parties were confined and by breaking a window. All of the parties were subsequently apprehended.

[1] I. The appellant complains that the court erred in failing to specifically define the crime with which appellant is charged in the instructions submitted to the jury. The court instructed the jury that the appellant was “on trial before you for the crime of assisting prisoners to escape from jail alleged by the indictment to have been committed substantially as follows,” quoting the indictment. The indictment itself specifically charged the appellant, with others with the offense of “aiding and assisting prisoners lawfully detained in the Woodbury county jail to escape from said jail, by means of saws, ropes, and other instruments and means.” In other instructions the court explicitly advised the jury with regard to the crime with which appellant was charged and the facts necessary to be established in order to justify a conviction. The objection urged by appellant is without merit.

[2] II. The appellant offered as witnesses two of the parties who escaped from the jail at the time the appellant did, whose testimony was to the effect that the appellant did not help or assist the other prisoners to escape from the jail. In rebuttal the state offered testimony contradictory to the evidence of these witnesses. Appellant complains that no instruction was given upon the question of accomplices. The appellant, having introduced the testimony of the so-called accomplices himself, is hardly in a position to complain of the failure of the court to give the usual instruction regarding the necessity of corroboration of the evidence of an accomplice.

III. Instruction 3 was as follows:

“You are instructed that our statute provides that, if any person, by any means whatever, aid or assist any prisoner lawfully detained in the penitentiary or any jail for a felony, in an attempt to escape, whether such escape be effected or not, he shall be imprisoned in the penitentiary not exceeding 10 years, or be fined not exceeding $500 and imprisonment in the county jail not exceeding one year.”

[3] Complaint is made of the portion of the instruction that tells the jury the penalty for the offense charged. This should have been entirely omitted from the instruction. In State v. Peffers, 80 Iowa, 580, 46 N. W. 622, we said:

“If there is any good reason for stating in the charge the punishment authorized for a given offense, when the punishment is not to be fixed by the jury, our attention has not been called to it. When such punishment is given, it should be stated accurately.”

In State v. O'Meara, 190 Iowa, 613, 177 N. W. 163, we said:

“With the penalty to be imposed, the jury had no concern, and might not take the punishment to be inflicted into account, in passing on the issue as to the guilt or innocence of the accused. The duty of fixing the penalty, under law, devolved upon the court alone.”

[4] The trial court should in all criminal cases refrain from instructing the jury with regard to the punishment provided by statute for the crime with which a defendant is charged. The jury has no concern with the punishment which the law prescribes. Its function is to determine the fact question as to whether the defendant is guilty or not guilty. We do not reverse because of the giving of such an instruction, but it is a practice which trial courts should avoid.

[5] It is further urged by the appellant that the instruction is erroneous in that the court did not correctly instruct the jury with regard to the penalty for the offense with which appellant was charged. It is obvious that, if the court instructed the jury with regard to the penalty provided for the crime charged, the penalty should be correctly given. State v. Peffers, supra.

[6] The particular complaint is that, in telling the jury the penalty prescribed by statute for the offense charged, the court failed to tell the jury the provisions...