APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment reversed.
Mr. Jacob Morgan, for Appellant.
Mr. Arthur T. La Prade, Attorney General, and Mr. James R. McDougall, Assistant Attorney General, for the State.
[42 Ariz. 342] McALISTER, J.
Appellant was convicted of an attempt to rescue a prisoner and given an indeterminate sentence in the state prison. He appeals from this judgment and sentence.
The information on which he was prosecuted names the crime it accuses him of committing as "Attempting to Rescue a Prisoner, a Felony," and then proceeds in this language:
"The said Herbert Merrill on or about the 10th day of January, 1933, and before the filing of this information at and in the County of Maricopa, State of Arizona, did then and there wilfully, unlawfully, knowingly and feloniously attempt to rescue from the County Jail of Maricopa County, Arizona, one Albert De Raey, who was then and there a prisoner lawfully in custody in the County Jail of Maricopa County, Arizona, upon a conviction of Attempted Burglary, [42 Ariz. 343] a felony, by then and there bringing into and introducing into said jail for the use of said Albert De Raey certain acid, the name of said acid to the County Attorney being unknown, with the intent that said acid be used by the said Albert De Raey in cutting and destroying the bars to a window of the said jail so that the said Albert De Raey, after having cut and destroyed the said bars, could escape from said jail, the said Albert De Raey having on the 2nd day of January, 1933, requested the said Herbert Merrill to bring and deliver to him, the said Albert De Raey, the said acid for the purpose of using the same to cut and destroy the said bars."
The information was drawn under section 4537 of the Revised Code of 1928, which reads as follows:
"§ 4537. Rescuing prisoners. Every person who rescues or attempts to rescue, or aids another person in rescuing or attempting to rescue, or assists in the escape or attempt to escape of any prisoner from any prison or jail, or from any officer or person having him in lawful custody, or any inmate from any reformatory school to which he has been lawfully committed, is punishable as follows," etc.
A demurrer upon several grounds was interposed to this information and among these was the general one that it did not state facts sufficient to constitute a public offense. This was overruled and the first assignment attacks this action of the court. It is contended that the information attempts to charge two offenses, namely, an attempt "to aid" a prisoner to escape and an attempt "to rescue" a prisoner from the county jail, but succeeds in neither. The court, however, held
that it did state the facts necessary to constitute an attempt to rescue the prisoner, De Raey, from the county jail. In naming the crime of which it accuses the appellant the information uses the term, "Attempting to Rescue a Prisoner, a Felony," and in designating a few lines lower the thing he "wilfully, unlawfully, knowingly and feloniously" did on January 10, 1933, repeats it. The use [42 Ariz. 344] of these terms in both instances, however, merely gives the name by which the information characterizes the crime it charges, but does not constitute that charge and is not decisive of the question whether it is in fact stated. That portion of the information which sets forth the facts, the acts performed by appellant, must be looked to for this purpose, and if these do not constitute that offense but do show a violation of some other portion of the Penal Code, the information is still sufficient, because it charges only one crime and that is the one the pleaded facts show, it being immaterial that the information improperly designates it. "The name of the crime, however," to use the language of State v. Culbreath, 71 Ark. 80, 71 S.W. 254, "is controlled by the specific acts charged, and an erroneous name of the charge does not vitiate the indictment." O'Halloran v. State, 31 Ga. 206; Brady v. Territory, 7 Ariz. 12, 60 P. 698. In 31 C.J. 669, par. 189, is found this statement which is supported by many authorities:
"So, too, an indictment is good as charging the offense which the facts set forth in the indictment constitute under the law, notwithstanding an improper ...