State v. Whalen

• Decision Date: 20 May 1889
• Citation: 11 S.W. 576,98 Mo. 222
• Parties: STATE v. WHALEN.
• Court: Missouri Supreme Court

11 S.W. 576

98 Mo. 222

STATE v. WHALEN.

Supreme Court of Missouri.

May 20, 1889.

CRIMINAL LAW — ESCAPE — INDICTMENT.

1. An indictment for an escape from jail need not aver that the court under whose commitment defendant was confined had jurisdiction to commit him, as courts will take judicial notice of the extent of that jurisdiction, which is defined by a public statute, and need not therefore be proved; and Rev. St. Mo. 1879, § 1821, renders unnecessary

to an indictment any allegation of which no proof is required.

2. On a trial for such an escape the state may prove by the records of the committing court the nature of such commitment, and the process under which it took place, to show that defendant was in lawful custody.

3. The testimony of the sheriff to the identity of defendant with the person originally committed is relevant.

4. Though the indictment allege a forcible breaking and an escape thus effected, a conviction may be had without proof of force, which is not an ingredient of the crime of escape, under Rev. St. Mo. 1879, § 1455.

5. The jury having been instructed to acquit if they entertained a reasonable doubt of defendant's guilt on the whole evidence, it is not error to refuse to charge that every material fact in the indictment must be established beyond a reasonable doubt.

Error to circuit court, Marion county; THOMAS H. BACON, Judge.

This appeal is from a conviction of defendant under an indictment charging that he, being "lawfully imprisoned," etc., upon a certain date "did feloniously break the said county jail and prison by cutting and sawing an iron bar, parcel thereof, and by cutting and removing a large stone, parcel thereof, and escape therefrom," etc. Defendant, testifying as a witness on his own behalf, admitted his escape from jail, but asserted that he merely availed himself of an opening he found in the wall; that he had no part in making it, and did not know of it until several other prisoners had escaped through it. At the trial several exceptions were taken. Those which are material will be considered successively in the course of the opinion.

John M. Wood, Atty. Gen., for the State. E. R. McKee, for plaintiff in error.

BARCLAY, J., (after stating the facts as above.)

It will not be necessary in this case to discuss the distinction drawn by some of the commentators on the common law between escape and breach of prison. Our statute undertakes to state definitely the facts constituting the offense charged here. The only question presented is whether defendant has been fairly tried...