Ash v. State

81 Ala. 76

Opinion

SOME NVILLE, J.

— The defendant is indicted for conveying into the county jail an instrument, described as a horse-shoe rasp, with the intent to facilitate the escape of one Jasper Towns, a prisoner lawfully confined therein, under a charge of burglary. — Code 1876, § 4130. The evidence shows that Towns not only consented to the act, but voluntarily procured it to be done. Upon the trial of this case, Towns was introduced as a witness against the defendant, and the question is raised whether he was such an accomplice in the crime charged against the defendant, as that a conviction could not be had on his uncorroborated testimony. — Code, 1876, § 4895.

It is our opfinion that Towns was not an accomplice in the crime charged in the indictment, which is aiding Ms (Towns’) escape. The statute strikes at the offense of one man aiding the escape of another, not that of himself, and this is made a felony.' The test is whether the witness could have been indicted' and convicted of the offense charged, either as principal or accessory.— Bass v. State, 37 Ala. 469. It is clear that he could not, for there is no law .which makes it a felony for a prisoner to effect his own escape. In Commonwealth v. Wood, 11 Gray, 85, it was decided that a woman who procured a defendant to produce an abortion on her was not an accomplice of the defendant in the crime. This ruling was reaffirmed in Commonwealth v. Boynton, 116 Mass. 343. In the latter case it is *said: “ She could not have been indicted as a participator in the offense, and was not an accomplice.” — 1 Whart. Or. Law (9th Ed.), § 594.

The rulings of the court were free from error, and the judgment is affirmed.