Summary
In Owens the defendant was indicted under the 1958 Recompiled version of Code 1940, Tit. 14, § 153, which refers solely to escapes from a penitentiary, when he should have been indicted under Tit. 14, § 151, "Escape of convict from jail or HARD LABOR" (emphasis added).
Summary of this case from House v. StateOpinion
1 Div. 92.
March 23, 1971.
Appeal from the Circuit Court, Mobile County, Robert T. Ervin, Jr., J.
Johnstone, Adams, May, Howard Hill and Douglas Inge Johnstone, Mobile, for appellant.
If an indictment under Section 153 of Title 14 of the Code of Alabama Recompiled (1958) alleges that the defendant escaped from the penitentiary and fails to allege in the alternative that the defendant escaped from a person or guard having the defendant in charge under authority of law, and if the proof pursuant to such indictment is that the defendant escaped from a person or guard having the defendant in charge under authority of law, said proof is at fatal variance from said allegation in said indictment. The State v. Plunket (1829) 2 Stew. 11; Garner v. The State (1912) 3 Ala. App. 161, 57 So. 502; Artrip v. State (1962), 541 Ala. App. 492, 136 So.2d 574; Armstrong v. State (1931), 24 Ala. App. 334, 134 So. 897.
No brief filed for the State.
The one count indictment singularly charged that appellant "* * * did escape from said Camp Eight Mile before the expiration of the term for which he was sentenced * * *." Tit. 14, § 153, Code 1940, as amended by Act. No. 371, Acts of Alabama, Regular Session, 1951, p. 664.
The proof showed that appellant escaped from the custody of a prison guard while working on a road gang twelve miles from "Camp Eight Mile."
Section 153, supra, reads as follows:
"* * * Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he was sentenced, shall, on conviction be imprisoned for an additional term of not less than one year." (Emphasis added.)
We consider this a fatal variance. No proposition of law is more fundamental than the one requiring that the proof at trial must correspond with the material allegations of the indictment. Stone v. State, 115 Ala. 121, 22 So. 275; Prentice v. State, 24 Ala. App. 587, 139 So. 437; Garner v. State, 3 Ala. App. 161, 57 So. 502; Ashby v. State, 24 Ala. App. 466, 136 So. 483; State v. Plunket, 2 Stew. 11.
Since appellant waived a jury trial and was tried by the court without the intervention of a jury, we mention the requirements of Singleton v. State, 8 Div. 405, Ala. Ms; Feb. 4, 1971, in the event of another trial.
Reversed and remanded.