Stewart v. State

• Decision Date: 28 September 1887
• Citation: 111 Ind. 554,13 N.E. 59
• Parties: Stewart and others v. State.
• Court: Indiana Supreme Court

111 Ind. 554

13 N.E. 59

Stewart and others

v.State.

Supreme Court of Indiana.

September 28, 1887.

Appeal from circuit court, Shelby county.Lee F. Wilson, for appellants. The Attorney General, for the State.

Howk, J.

In this case the indictment charged “that on the thirteenth day of November, A. D. 1886, at and in the county of Shelby and state of Indiana, one Mollie Vancleave, a prisoner, who had been and then was tried and convicted in said county of a felony, to-wit, of having on the twenty-second day of September, 1886, at and in said county and state, unlawfully and feloniously blackmailed one Charles E. Karmire, and who then and there had been sentenced by said court to serve one year in the Indiana reformatory institution for women and girls, was duly and legally confined by James Magill, the sheriff of Shelby county, Indiana, in the jail of said county and state, and was then and there in the custody of said sheriff of Shelby county, Indiana, and the officer who was then and there charged with the custody of said Mollie Vancleave, said Mollie Vancleave being then and there in the custody of said officer under said conviction and sentence for said crime and felony aforesaid; and that David Stewart and Schuyler Stewart, not then and there being the officer or officers charged with the custody and safe-keeping of said Mollie Vancleave, did on the thirteenth day of November, 1886, then and there unlawfully, purposely, and feloniously aid and assist the escape of said Mollie Vancleave from the custody of said sheriff, and from said jail, by then and there unlawfully, purposely, knowingly, and feloniously procuring and hiring a horse and buggy, and a man to furnish and drive said horse and buggy, and going with and directing said man, viz., Lincoln J. Van Buskirk, to a certain place in the city of Shelbyville, a short distance from said jail, and by giving signals to said Mollie Vancleave in said jail, from the outside thereof, and waiting near said jail building, and then and there meeting said Mollie Vancleave at said jail, and at an alley adjoining said jail, and conducting, accompanying, taking, and directing her to where said Van Buskirk was, by their order and direction, waiting for them, and assisting her to said buggy, for the purpose of being conveyed therein, by their order and direction, out of and away from said county; with intent then and there and thereby to aid, assist, and accomplish the escape of said Mollie Vancleave from the custody of said sheriff, and from said jail, and did then and there and thereby aid, assist, and accomplish the escape of said Mollie Vancleave from the custody of said sheriff and from said jail,-they, the said David Stewart and Schuyler Stewart, knowing that said Mollie Vancleave was then and there under conviction and sentence for said crime and felony aforesaid, and in the custody of said sheriff by reason thereof.”

Upon appellants' arraignment and plea of not guilty the issues joined were tried by a jury, and a verdict was returned finding each of them guilty as charged, and that each be imprisoned in the state's prison for two years. Over the written motion to set aside the verdict herein, judgment was rendered against them thereon, and in accordance therewith.

In this court complaint is first made on behalf of appellants of the overruling by the trial court of their motion to quash the indictment herein. It is insisted by appellants' counsel that the indictment is bad for duplicity, in that it charges the appellants in a single count with the commission of two different and distinct offenses, defined in two different sections of the statute. It is settled by our decisions that duplicity, when it clearly exists, affords sufficient ground for sustaining a motion to quash an indictment or information. Knopf v. State, 84 Ind. 316; State v. Weil, 89 Ind. 286; Fahnestock v. State, 102 Ind. 156, 1 N. E. Rep. 372.

But we do not think that the indictment in the case under consideration is at all open to the charge of duplicity. We have heretofore given the substance of the indictment herein, and it is manifest therefrom that it was intended to charge the appellants therein and thereby with the single specific offense against public justice which is defined, and its punishment prescribed, in section 2029, Rev. St. 1881. That section reads as follows: “Whoever, not being a person having the lawful custody of any prisoner charged with or convicted of a felony, shall aid or accomplish the escape of such prisoner, shall be imprisoned in the state prison not more than twenty-one years nor less than two years.” From the language used in the indictment in this case, it is clear, we think, that appellants are therein charged with the felony defined in section 2029, above quoted, almost in the exact terms of the statute; and this, under our decisions, makes the indictment sufficient to withstand the motion to quash it. Ritter v. State, 111 Ind. ---, 12 N. E. Rep. 501, and cases cited; Trout v. State, 12 N. E. Rep. 1005, (present term.)

It is claimed, however, by appellants' counsel, that the language used in the indictment herein aptly charges the appellants with the commission of the mere misdemeanor, which is defined, and its punishment prescribed, in section 2031, Rev. St. 1881. That section provides as follows: “Whoever aids or assists a person lawfully confined in any jail, work-house, city prison, or other lawful place of confinement, to escape therefrom, or in an attempt to escape therefrom, * * * shall be fined not more than five hundred nor less than fifty dollars, and imprisoned in the county jail not more than one year, nor less than three months.” By comparing the provisions of sections 2029 and 2031, supra, severally, with the language used in the indictment under consideration, it cannot be doubted, as it seems to us, that it was intended to charge the appellants in such indictment with the felony defined in section 2029, supra, and not with the mere misdemeanor defined in section 2031, above quoted. We are of opinion, therefore, that the indictment herein is not bad for duplicity, and that appellants' motion to quash it, on that ground, was correctly overruled. Mills v. State, 52 Ind. 187.

The only other error properly assigned by appellants is the overruling by the court below of their motion to set aside the verdict herein. Under this alleged error it is first insisted on behalf of appellants that the trial court erred in refusing to give the jury, at their request, the following instruction: “If you find from the evidence that Mollie Vancleave escaped from the county jail unassisted by the defendants, and that, after she had so escaped, she met the defendants, who accompanied her to another part of the city, where she got into a buggy, and was driven off by one Van Buskirk, and that the defendants had nothing whatever to do for or with the said Mollie, in aid of her escape, until after she had so escaped, and had no previous knowledge...