Bleckley, Chief Justice.
These indictments being, for the offence of aiding Wesley Hubert, a prisoner, to escape from custody, the first question is, whether the offence proved was the one- charged, or whether it was the offence of rescue. The two relevant sections of the code are as follows : « Rescue is the forcibly and knowingly freeing another from arrest or imprisonment.” §4478. “If any person or persons shall aid or assist any prisoner to escape or attempt to escape from the custody of any sheriff, coroner, constable, officer, or other person, who shall have the lawful charge of such prisoner, such person so offending shall, on conviction, be punished,” etc. §4483.
We think that rescue takes place where there is no effort on the part of the prisoner to escape, but his deliverance is effected by the intervention of others without his co-operation; whereas, the offence of aiding a prisoner to escape consists in inciting, supporting or reinforcing his exertions in his own behalf tending to the accomplishment of that object. The evidence shows, in all three of these cases, that Wesley Hubert was not merely passive, but was himself making demonstrations and putting forth some effort to effect his escape.
In each of the cases there was evidence from which the jury could infer that the accused encouraged, or otherwise contributed, to the .efforts of the prisoner to render his escape effectual; and in point of fact his efforts were effectual. The escape was accomplished.
We discover no error in refusing to continue the case of Jack Goldsmith because of the absence of one of his counsel. The leave of absence which had been granted had expired. The same observation applies to the refusal of the court to postpone the case until the following week.
The challenge both to the array and to the polls was properly overruled. Although it appeared that the jurors were present and heard the evidence delivered on oath, it did not appear that they or any of them had formed and expressed any opinion as to the guilt or innocence of the party making the challenge. The objection that the panel required two more jurors to render it full, was met by summoning that number to complete the panel, and thus completing it.
The exception that the court remarked, “Yes, yes,” etc., when the reporter was requested to note an objection to a certain ruling, is too trivial to require discussion.
Lovejoy, who had been previously tried, was sentenced in the due administration of judicial business ; and we cannot hold that the regular proceedings of a court are to be varied or delayed by the fact that they may affect the minds of jurors with reference to other business which must subsequently come up for trial. Johnson vs. The State, 59 Ga. 189; Townsend vs. The State, 76 Ga. 105; Collins vs. The State, 73 Ga. 76.
It was competent to prove that Hurst was the acting marshal of Decatur, and to show by any one who knew the-fact that the book of the minutes of the town council was such. book. There was no objection that a certified copy from the book would be the primary evidence, according to sections 3816 and 3817 of the code.
It may have been somewhat irregular to allow witnesses to testify as to what passed between them and others in reference to the arrest of the negro Hubert, hut this we think did not vitiate the trial.
The same may be said as to allowing the State’s counsel to argue from the failure of the defendant to make a statement. The court was particular to obviate, by an appropriate charge, any hurtful result.
The charge of the court upon reasonable doubt seems free from objection. We do not see that it varied substantially from that usually given, and which has been held correct in hundreds of cases.
Touching alibi, the court may have given an improper charge; we need not rule on that question, for really any charge whatever upon the subject of alibi was in favor of the prisoner; according to the evidence, there was no alibi involved in the case. No absence from the scene of the crime appeared, whether the testimony for the accused or for the State be regarded. All of these parties were in the crowd, and were legally present when the offence was committed.
The charge of the court to the effect that the jury must arrive at a verdict, is to be understood with reference to the subject-matter under consideration, which was the duty of reconciling conflicting evidence. The court simply meant that the jury must arrive at some conclusion which would reconcile all the evidence, if they could do so.
The marshal of a town de facto is to all intents and purposes an officer, as to the legal power of making arrests; and this is so whether he had given bond and security or not, and whether he resided in the corporate limits or not.
The rejection of evidence that the marshal was elected or appointed conditionally, with the understanding that he was not to exercise the duties of the office until he removed within the town, and that at the time of Hubert’s arrest he had not complied with said condition, was not error. No such condition appeared upon the minutes of the council; it rested altogether in parol. Besides, if such condition was imposed, it did not in any way militate against the subsequent fact that the marshal acted as marshal, and was in all respects an officer de facto. Proof that he so acted established his official character. Code, §3764.
It certainly was irregular to interrogate Henry Goldsmith after he had concluded his statement, by asking him whether he meant to deny the testimony of the witnesses; but the court explains that this was done for the purpose of calling attention to an omission in the statement, and with a purpose altogether friendly-The motive was a kind one. Nevertheless, the act was not well-advised, and we cannot approve it. But we do not feel warranted in directing a new trial on account of it. .
That the court said to the witness Millie Stills, “ You talk too much, Millie,” does not seem to require a-new trial. The remark was made simply to check her volubility while she was rattling away so that her evidence could with difficulty be separated from mej’e “ talk.”
The refusal to charge in the case of Henry Goldsmith, that if he stai-ted into the crowd under the impression that-his brother Jack was in a fight, and immediately upon being told that he was not, desisted without having committed any act tending to liberate the prisoner, then the jury would be authorized to find him not guilty, — was not error, considered in the light of the whole charge as contained in the record. The jury were instructed that there could be no conviction unless they believed from the evidence that the accused aided or assisted in the escape of Hubert from the officer.
Our conclusion is, that the court did not err in refusing to grant a new trial, in all or any one of the three cases.
Judgment affirmed.