Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13. Page: 68
viii, 382 p. ; 22 cm.View a full description of this book.
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335-136 SUPREME COURT.
Busby v. The State.
capital. This is probably the Setion of che law that the prosecuting attorney
]lha ill view in drafting the indictment; but it would only be by the most libcral
intcndment that this Article could be construed to embrace counseling
and advice to be aiding within the meaning of the law. Humanity and the
acknowledged rules of construction of the Criminal Law alike forbid any
suich latitude of construction. [13a.] The previous Articles, and the one we
aicl discussing, show that aid must be given by something more substantial than
mere words of counsel and advice, and clearly point to physical aid. The indictnient
does not charge the prisoner with having the custody of the prisoner
who escaped; if it had, and had charged hinj with voluntarily permitting the
escape, evidence of counseling and advising the escape would have gone far,
if not conclusively. to show that he had permitted it under Article 549, which
provides the punishment for such offense. Or if, having the custody of the
prisoner, lie had negligently permitted him to escape, and had been indicted
for that offense under Article 551, such counsel and advice would have been evidence
of a want of due diligence in guarding the prisoner.
But if the offense as charged had been specially expressed in the statute,
we should have been compelled to reverse this judgment on the charges given
by the Court and excepted to by the defendant's counsel. The Court charged
the jury, "' that if they believe from the testimony the prisoner in anymanner
" aided the escape of Aikens G. Shultz, they must find him guilty."1 We have
again and again ruled that in civil cases the altegata and probata, must correspond
and agree; that the enforcement of this rule was - demanded by the
interest and rights of the parties; and surely the reason of this rule would be
stronger where the character and the liberty of the citizen was involved. The
indictment having specially designated the manner in which this supposed aid
was extended, to wit: by advising and counseling, it would be preposterous
to suppose that proof could be received that an axe or any other implement
had b3en furnished the prisoner for the purpose of cutting his way out of
prison.
The second charge, however, is still more remarkable and objectionable.
The Court charged, "lhat it having been proved by the State that the said
Shultz was legally in the custody of defendant, and that he made his escape,
"it devolved on the defendant to show that said-escape was against [136] his
"will." What right had the Judge to tell the jury that it had been proved,
or what had been proved? But this is not the only objection to this charge.
It shows that evidence was received that ought not, and could not, legally
have been received. There was no averment in the indictment that the escaped
prisoner ever had been in the custody of the defeAdant; he was not
indicted for either voluntarily permitting, or negligently allowing a prisoner
committed to his custody, to escape. It is clear that he was indicted for one
offense and convicted of another, that is, if there was any offense, known to
the law, charged in the indictment. For the errors we have noticed the judgment
must be reversed and the prosecution dismissed.
Reversed and dismissed.
BUsmY AND oHERI V. THE STATE
1. Bo si-Where a capias is issued by the Court in session returnable forthwith the Shertf
has no authority, under Article 2889, Hart. Dig., to take a bond for his appearance, and a.
bond so taken is void.
2. JUDGoENT.-Where a defendant in a criminal case had given bond for his appearance, upon
which there was judgment, from which the defendant and his sureties appealed, the bond
being void. the judgment was reversed as to a1l the appellants, notwithstanding the originul
defendant oad not surrendered himself,
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Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during Austin term, 1854, and a part of Galveston term 1855. Volume 13., book, 1876; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth28561/m1/76/: accessed April 26, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .