#### STATE v. MACK CARIVEY.

(Filed 21 October, 1925.)

1. Criminal Law — Escape—Statutes.

Where a prisoner has been lawfully confined in a jail, and by tbe aid of one on tbe outside succeeds during tbe nigbt in breaking through and leaving his cell but remains within the outside corridor of the jail until found by the officers of the law, a legal escape had not been effected.

2. Same — Indictment—Attempt.

Where the bill of indictment charges that the defendant gave assistance to one in lawful confinement by a direct ineffectual act done towards the commission, with intent to effect his escape, and by explicit language shows an attempt to rescue, the word “attempt” need not be set out in the indictment.

3., Same.

An attempt t.o commit a crime is an indictable offense. The indictment charges an attempt to rescue.

Appeal from *Devin, J.,*and a jury, at June Term, 1925, of Halieax. No error.

Defendant was convicted and sentenced under tbe following bill of indictment, and appealed to tbe Supreme Court:

“Tbe jurors for tbe State, upon their oath, present, tbat on tbe 11th day of January, 1925, at Eoanoke Eapids, in said county, one W. D. Johnson was undergoing lawful imprisonment in tbe common jail to await bis trial on tbe charge of operating an automobile, while under tbe influence of intoxicating liquor, upon tbe public highways of said county; whereupon Mack Carivey and Kichard Savage, late of Halifax County, on tbe 11th day of Jánuary, 1925, at and in tbe county aforesaid, did then and there well knowing these premises and with tbe intent tbat tbe said *W.*D. Johnson should elude justice *320and escape out o£ tbe said jail, and go at large, unlawfully, wilfully and feloniously enter tbe outside door of said jail and remove tbe levers wbicb were used to fasten tbe doors enclosing and confining tbe prisoners in said jail, against tbe form of tbe statute in sucb case made and provided, and against tbe peace and dignity of tbe State.

R. HuNt PARKER, *Solicitor.”*

Tbe State’s evidence was, in substance: “One Dudley Johnson was confined in tbe town jail of Roanoke Rapids under proper papers charging him with driving an automobile while intoxicated. Tbe jail was tbe city lock-up at Roanoke Rapids. It. consisted of an outer wall of brick and an inner defense of steel, wbicb was separated from individual cells by an interval wbicb is called a ball in tbe case. There was a door entering tbe brick wall and then a door wbicb opened through tbe steel defense into tbe ball, and then doors to each individual cell. Tbe defendant in this appeal went with Richard Savage on tbe night of 11 January, 1925, to this place with tbe intention to get Dudley Johnson out. Savage bad with him a key wbicb unlocked tbe outer door and be and 'the defendant entered tbe jail there. They could not, however, open tbe door to tbe steel enclosure. After working with it for a while and finding they could not, they reached in and moved tbe lever so that Johnson could come out of bis individual cell into, tbe ball, leaving him, Johnson, however, confined within tbe limits of tbe steel enclosure. When tbe officers went to tbe lock-up tbe next morning, they .found Johnson in this ball and out of bis cell. Upon their asking an explanation, be accounted for bis being out of tbe cell as stated herein.”

*Attorney-General Brummitt and Assistant Attorney-General Nash for the Slate.*

*Travis & Travis for defendant.*

OlarksoN, J.

Tbe defendant in bis brief says: “There was only one exception, and that was to tbe sufficiency of tbe bill of indictment. After verdict the defendant moved in arrest of judgment on tbe ground that tbe bill of indictment does not sufficiently charge defendant with tbe crime of ‘Escape,’ and does not sufficiently charge defendant with any crime under tbe law. . . . Clearly this bill does not charge an escape. It does not charge that there was an escape, and in fact there was none.”

In 2 Bishop on Criminal Law, 9 ed. (1923), sec. 1065, subsec. 3, it is said: “Tbe word ‘escape’ has two separate meanings in tbe law. One is tbe allowing, voluntarily or negligently, of a prisoner lawfully *321in custody to leave Ms confinement. The other is the going away, by the prisoner himself, from his place of lawful custody, without a breaking of prison.”

In *S. v. Ritchie,*107 N. C., p. 858, it is said: “An escape is defined— 'when one who is arrested gains his liberty before he is delivered in due course of law.’ 1 Buss. Crimes, 467. And by another eminent authority, tersely, as 'the departure of a prisoner from custody.’ 2 Whart. Cr. L., sec. 2606. These definitions are cited and approved by *Smith, C. J.,*in *S. v. Johnson,*94 N. C., 924.”

We do not think the bill charges an escape. The only question for our decision, under the bill of indictment and evidence, is: Has defendant been convicted of any crime?

It is said, *In re Westfeldt,*188 N. C., p. 709: “The charge of the court not appearing in the record, it is to be presumed that the court below charged the law in accordance with the evidence.”

The crime is not prison breach — that is defined in 2 Bishop, *supra,*see. 1065, subsec. 1, as follows: “Prison breach is a breaking and going out of prison by one lawfully confined therein.”

C. S., 4404 declares: “If any person shall break prison, being lawfully confined therein, or shall escape from the custody of any superintendent, guard or officer, he shall be guilty of a misdemeanor.”

We think the crime of which defendant is charged, and of which he has been convicted is an attempt to commit the crime of rescue. Bescue is defined in 2 Bishop, *supra,*1065, subsec. 2: “Bescue is a deliverance of a prisoner from lawful custody by any third person.”

If there had been a deliverance of the prisoner by defendant he would have been guilty of rescue, as the prisoner, by the admitted evidence, was in lawful custody.

C. S., 4640 is as follows: “Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime.” *S. v. Kline, ante,*p. 180.

Here, then, was an attempt to commit a crime amounting to a rescue, and C. S., 4640 permits the jury to convict a prisoner of a less degree of the same crime or of an attempt to commit the crime charged in the bill of indictment.

*Hoke, J.,*in *S. v. Addor,*183 N. C., p. 688, said: “An attempt to commit a crime is an indictable offense, and as a matter of form and on proper evidence, in this jurisdiction, a conviction may be sustained on a bill of indictment making the specific charge, or one which charges a completed offense. *S. v. Colvin,*90 N. C., 718; C. S., 4640. In 3 A. & E., p. 250, an unlawful attempt to commit a crime is defined *322as an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual commission and possessing, except for failure to consummate, all the elements of the substantive crime; and in 16 Corpus Juris, at p. 113, it is said that an unlawful attempt is compounded of two elements: Eirst, the intent to commit it; and, second, a direct, ineffectual act done towards its commission.” The learned *Justice*in the *Addor case*cites abundant authority and reasoning to sustain the position. 1 Cyc. Criminal law (Brill, 1922), sec. 146.

The language of the bill of indictment used the word “intent,” and the facts set out show an “attempt” without using the word. The words in the bill *ex vi termini*necessarily import an attempt to commit the crime of rescue, and are amply sufficient to give the defendant full notice of the crime with which he stands charged, and that is the chief purpose of the bill of indictment. "We think this principle is borne out in *S. v. Hewett,*158 N. C., p. 629, at least not in conflict with it.

C. S., 4623 is as follows: “Every criminal proceeding by warrant, indictment, information, or impeachment is sufficient in form for all intents and purposes if it express the charge against the defendant in a plain, intelligible, and explicit manner; and the same shall not be quashed, nor the judgment thereon stayed, by reason of any informality or refinement, if in the bill or proceeding, sufficient matter appears to enable the court to proceed to judgment.”

“Form, technicality and refinement have given way to substance, and it is sufficient if the indictment contains the charge in a plain, intelligent, and explicit manner. *S. v. Leeper,*146 N. C., 655; *S. v. Hedgecock,*185 N. C., 714; *S. v. Hawley,*186 N. C., 433.” *S. v. Switzer,*187 N. C., 96; *S. v. Jarrett,*189 N. C., 520.

From the record we find

No error.