State v. Murray

The opinion of the Court, after a continuance for advisement, was prepared by Emery J.

This comes before us on exceptions to the ruling and charge of the Court of Common Pleas. There are three counts in the indictment. Tho first charging that Wm. Murray, David Terry, Charles Burlingham, James Alexander, Thomas H. Marten, on the first of April, 1837, were persons lawfully confined in the county jail in Bangor, and then and there lawfully detained in the custody of the keeper of said prison, by divers legal pro *102 cesses then in force against them, and that Silas P. Murray, on said fifth day of April, was not a prisoner in said jail. And that they all intending to break down and destroy a part of the floor and walls of the said jail, and thereby unlawfully to effect the escape of the said William Murray, David Terry, Charles Bur-lingham, and James Alexander, then lawfully confined in that pris-ión in the custody of the keeper, did conspire to break down and destroy the floors and walls of the jail, and thereby effect the escape of those four; and in pursuance of this conspiracy, did unlawfully break down and destroy" the floor and walls of said jail. 2d. Count. That intending to effect the escape of said William, David, Charles and James, did unlawfully conspire to effect their escape and did so in pursuance of the conspiracy. 3d. That they did conspire to injure and destroy the jail; and said William, David, Charles, James, Thomas H. and Silas P. in pursuance of the conspiracy, did unlawfully injure and destroy the jail.

It is objected first, that the indictment is bad, as it contains in each count a charge of two crimes. That it does not describe the crime with sufficient certainty, and one would not know whether he was to be tried for prison breach, or a conspiracy, and could not plead a conviction in bar of another prosecution. That a conspiracy to break jail is a mere civil trespass, and without prison breach to malte escape, is not crime, and cites 13 East, 228. An indictment will not lie for conspiracy to commit a civil trespass upon property by agreeing to go, and by going, into a preserve for hares, the property of another, for the purpose of snaring them, although alleged to be done in the night time by the defendants, armed with offensive weapons for the purpose of opposing resistance to every endeavor to apprehend and obstruct them. That a conspiracy to commit a felony is merged in the felony. Commonwealth v. Kingsbury & al. 5 Mass. R. 106. That a conspiracy to commit a misdemeanor is a misdemeanor, and so is merged.

And the counsel enquires if the whole object will not be attained by punishing for prison breach, without the conspiracy, and he urged that all the previous acts are absorbed in the prison breach. It is also insisted, that Alexander was not lawfully in prison, because the legal fees were not certified.

*103 Objection was also made to .Hodsdon’s testimony as to the cause for which Burlingham was imprisoned, and Wright’s B,. 203, cited. That entry on back of papers is no evidence. There should be records.

Whatever objection might have arisen on the writ of habeas corpus to bring up the body of Murray, we do not admit, that the parties could be justified in resort to the breach of prison to effect an escape. People are not to be encouraged in demolishing the prisons of the county, to obtain the liberation of prisoners, who are presumed to be lawfully in custody, till the cause of their commitment is regularly certified to the constituted authorities in the way pointed out by law. We overrule that objectiom

Still less weight results from the circumstance that the fees were not certified in the case of Alexander. If there were no fees certified, none would be demanded for his liberation. If they were charged incorrectly and demanded and received, another remedy of a more peaceable character might be pursued. It is a rule, that a defendant in one count in an indictment is not to be charged with having committed two or more offences, as murder, robbery, or the like. But in cases of treason and conspiracy, overt acts are laid merely as evidence of the principal charges. And so we consider, that the principal charge here, is the conspiracy to effect the escape of the prisoners, and the breaking of the floors and walls of the prison are introduced as evidence of the consummation of the project. We do not apprehend that the doctrine of merger of a misdemeanor in a felony can justly apply to this case. No felony is charged, and we cannot extend it to misdemeanors.

In our examination of the exceptions, we are unable to discover satisfactory reasons for sustaining them. They are therefore overruled.