People v. Murphy

Defendant was convicted of simple assault under the first count of an information, which charged assault with a deadly weapon, and was found guilty under the second count, which charged a violation of section 109 of the Penal Code, denouncing the crime of assisting the escape of one in the custody of the law. The appeal of defendant is general and is from the judgment and from an order of the trial court denying his motion for a new trial, but he complains only of the judgment and order under the second count.

The point is settled without dissent, in those few jurisdictions in which it has arisen, that one cannot be guilty of such a crime as that specified in section 109 of the Penal Code unless his effort accompanies an actual attempt upon the part of someone else to free himself from the confinement of prison walls or from the custody of some minion of the law. The question is one of first impression in California, but the unanimity of decision elsewhere seems based upon reason and logic. One can only assist another in what that other makes an effort to do of his own volition. If one attempts to free that other from restraint without any effort on the latter’s part the crime is…