Marshall v. State

120 Ala. 390

Opinion

HARALSON, J.

The statutory offenses created by sections 4711 and 4712 of the Code, are different, — the one a felony and the other a misdemeanor; and' from the terms of the two sections it is obvious, that an indictment under the first would necessarily contain averments not required in the latter. What averments are necessary in an indictment under 4711, was very fully considered in Hurst v. The State, 79 Ala. 55.

The indictment in this case was found under said section 4712, describing the offense created thereunder, in the language of the statute, or words conveying the same meaning, and alleges the fact in the doing of Which the offense consists.—Code, § § 4896, 4898; Grattan v. The State, 71 Ala. 344; Wilson v. The State, 61 Ala. 151.

The ground of demurrer taken to the indictment, — that it “fails to aver that the act of drilling or prizing out a hole through the walls of the jail was done with the intent to facilitate the escape of G-us Rainier from said jail,” — is not well taken, but if applicable in any case, it would be to an indictment under section 4711. The demurrer was properly overruled,

Affirmed.