The State v. Sutton

• Decision Date: 26 May 1908
• Docket Number: 21,186
• Citation: 84 N.E. 824,170 Ind. 473
• Parties: The State v. Sutton
• Court: Indiana Supreme Court

84 N.E. 824

170 Ind. 473

The State v. Sutton

No. 21,186

Supreme Court of Indiana

May 26, 1908

From Jackson Circuit Court; Joseph H. Shea, Judge.

Prosecution by the State of Indiana against George Sutton. From a judgment for defendant, the State appeals.

Reversed.

James Bingham, Attorney-General, A. G. Cavins, H. M. Dowling, E. M White and Oren O. Swails, for the State.

Ralph B. Applewhite and Ross Robertson, for appellee.

OPINION

Monks J.

Appellee was charged by affidavit with a violation of § 2400 Burns 1908, Acts 1905, pp. 584, 700, § 497, which reads as follows: "Whoever, not being a person having the lawful custody of any prisoner charged with or convicted of a felony, shall aid in or accomplish the escape of such prisoner, shall, on conviction, be imprisoned in the state prison not less than two years nor more than twenty-one years." The court sustained appellee's motion to quash the affidavit, and rendered final judgment discharging appellee.

The State insists that the court erred in sustaining said motion to quash the affidavit.

Counsel for appellee insist that the affidavit was insufficient, because it did not allege that appellee had knowledge that the person whom he aided to escape was in legal custody. In Commonwealth v. Filburn (1876), 119 Mass. 297, cited by appellee to sustain said contention, the statute provided a punishment for any person who "aids or assists a prisoner in escaping, or attempting to escape from an officer or person who has the lawful custody of such prisoner." The court said, at page 298: "Construing it in the light of well-known principles of the criminal law, there is no difficulty in ascertaining the intention of the legislature. But the language used does not, ex vi termini, describe all the ingredients of the offense intended to be punished, with the certainty required in criminal pleading. An indictment under it, therefore, must allege all the facts necessary to bring the case within the intent and meaning of the statute. Commonwealth v. Barrett [1871], 108 Mass. 302, and cases cited. By the literal construction of the statute any person who should do any act, however innocent, the effect of which was to aid a prisoner in escaping, would be subject to its penalty. For instance, if a prisoner should escape, and a person driving in the street should innocently give him a ride, or if a person should innocently receive him in his house, and thus enable him to elude the fresh pursuit of the officer, such persons would, within the literal terms of the statute, aid the prisoner in escaping. But it cannot be presumed that the legislature intended to subject such persons to its penalty, and thus punish them for innocent acts done without any criminal intent. In such a case, if the act was done without any knowledge that the person aided was an escaping prisoner, it would be innocent and not punishable, but if done with such knowledge would be criminal and within the statute. The indictment should allege the acts done by the defendants. If they are unlawful in their nature, such as an assault upon or forcible obstruction of the officer, it may not be necessary to allege knowledge of the defendants that the prisoner was in custody. But if they are in their nature innocent, and are only made criminal by a knowledge that the prisoner was escaping, such knowledge should be alleged." The other cases cited by appellee on this point cite and follow Commonwealth v. Filburn, supra.

In State v. Lawrence (1890), 43 Kan. 125, 23 P. 157, also cited by appellee, it was not alleged that the accused had knowledge that the prisoner was in legal custody, nor were the acts which aided the prisoner to escape set out. The court said at page 128: "If the acts done by way of assistance were alleged, as they should be, they might be of such a character that guilty knowledge would necessarily be inferred, and an express allegation of such knowledge might not be essential. For instance, if the defendant had furnished a prisoner confined in the jail instruments which could only have been intended to facilitate an escape, or had broken the prison door, or had forcibly assaulted or obstructed an officer who had a prisoner in charge, an express allegation of knowledge that the prisoner was in legal custody might not be necessary; but where the acts done are in their nature innocent, such knowledge should be stated."

It sufficiently appears from the affidavit that the prisoner, Cicero Sutton, was in the lawful custody of Van Robertson, the deputy sheriff of said county, on a warrant issued by the clerk of the circuit court, on an indictment for petit larceny--a felony; that appellee "did then and there feloniously, wilfully, unlawfully and forcibly aid in and accomplish the escape of said Cicero Sutton, by then and there unlawfully and feloniously drawing and pointing a shotgun on and at said Van Robertson, and attempting to shoot him with said gun, and by holding and striking one Gerry Preggy, who was then and there attempting to assist said Van Robertson in restraining and keeping said Cicero Sutton in said custody."

It will be observed that the acts done by appellee in aiding and accomplishing the escape of said prisoner were set out in the affidavit, and that they were unlawful and not innocent in their nature. It is clear therefore that the rule declared in Commonwealth v. Filburn, supra, and State v. Lawrence, supra, does not apply to this case.

"An escape is where one who is under arrest gains his liberty before he is delivered by due course of law. Where an escape from confinement is effected by the prisoner with force, it is called a prison breaking; and where it is effected by others with force, it is known as a rescue." Gillett, Crim. Law (2d ed.), § 428.

It is said in 1 Russell, Crimes (6th ed.), 889: "An escape is where one who is arrested gains his liberty before he is delivered by the course of the law. And it may be by the party himself; either without force before he is put in hold, or with force after he is restrained of his liberty; or it may be by others; and this also either without force, by their permission or negligence or with force, by the rescuing of the party from custody. Where the liberation of the party is effected either by himself or others, without force, it is more properly called an escape; where it is effected by the party himself with force it is called prison breaking; and where it is effected by others, with force, it is commonly called a rescue."

It is evident that § 2400, supra, upon which this prosecution is based, includes cases where the accused with force aids or accomplishes the escape of a prisoner charged with or convicted of a felony under such circumstances as would be "a rescue" at the common law.

It is said in 1 Hale, Pleas of the Crown (1st Am. ed.), * 606, * 607: "Again, to make a rescue felony, the party rescued must be under custody for felony or suspicion of felony, and it is all one, whether he be in custody for that account by a private person, or by an officer or warrant of a justice, for where the arrest of a felon is lawful, the rescue of him is a felony. It seems that it is necessary that he should have knowledge that the person is under arrest for felony, if he be in the custody of a private person. But if he be in the custody...