Kyle v. State

10 Ala. 236

Opinion

ORMOND,J.

The penal code creates two distinct grades of offence of this class; making it a penitentiary offence to aid a prisoner in his escape from the county,jail, or other place of confinement, who is detained for a felony, and a misdemean- or if the prisoner is detained for any other offence, other than a felony, [Clay’s Dig. 429, *§> 16, 17.] An indictment under this statute for the higher offence, must alledge the facts, which on conviction will authorize the court to sentence the prisoner to confinement in the penitentiary. For any thing shown in this indictment, the offence may be a mere misdemeanor, and it is a cardinal rule of criminal pleading, that the indictment must alledge every thing necessary to authorize the conviction and judgment of the court. The judgment must therefore be reversed, but the prisoner will remain in custody, until discharged by due course of law.