Brannan v. State , 44 Tex. Crim. 399 ( 1903 )

Appellant was convicted of aiding a prisoner to escape, in violation of article 229, Penal Code, and fined $50.

Article 229, Penal Code, reads as follows: "If any person shall willfully aid a prisoner to escape from the custody of an officer, by whom he is legally detained in custody on an accusation for a misdemeanor, by doing an act calculated to effect that object, he shall be punished by fine," etc. Appellant's contention is that this article has no application to the facts adduced in evidence, and that under the testimony he is not guilty of violating it. The uncontroverted evidence is that appellant's principal had been convicted in three cases of misdemeanor, and placed in charge of the proper officer, and was being worked upon the road as a county convict under these convictions at the time of his escape. The State's contention is that the terms of article 229 apply as well to defendants after conviction as pending prosecution, and it cites in support of this article 240, Penal Code, which provides: "The word `accusation,' as used here, and in every part of this code, means a charge made in a lawful manner against any person, that he has been guilty of some offense, which subjects him to prosecution in the name of the State. A person is said to be `accused' of an offense from the time that any `criminal action' shall have been commenced against him. A legal arrest without warrant; a complaint to a magistrate; a warrant legally issued; and indictment, or an information, are all examples of `accusation,' and a person proceeded against by either of these is said to be `accused.'" As we understand an "accusation" under our statute, it applies to a pending prosecution, and when that prosecution has been terminated in a conviction it ceases to be an accusation. After a conviction or the judgment of guilty, a party is termed a "convict" when he has accepted the sentence or judgment of conviction as a finality, which has been adjudged against him by the court of last resort which has jurisdiction of his case to which he may have thought proper to appeal. Art. 27, Penal Code; Arcia v. State, 26 Texas Crim. App., 193; Woods v. State, 26 Texas Crim. App., 490; Jones v. State,32 Tex. Crim. 135. Appellant's principal had accepted the punishment awarded him, and was serving out that punishment at the time of his escape. It was no longer an accusation, but was a conviction, and the terms of article 229, Penal Code, do not apply.

The judgment is reversed, and the cause remanded.

Reversed and remanded.

[The State's motion for rehearing was overruled without a written opinion. — Reporter.]