1. Indictment of Two or More Parties Jointly — "Acting Together" — Surplusage. — Indictments charging two or more persons with the same offense are riot required to allege that the parties "acted together," and such allegation when made is surplusage.
2. Same — Breaking Jail to Rescue Prisoners — "Willfully" and "Force." — The crime of breaking into jail to rescue prisoners, as denounced by article 212, Penal Code, does not use the terms "willfully" and "force" in defining said offense, and an indictment for said offense is good and sufficient without the use of said terms.
3. Special Judge — Plea as to Disqualification of. — A plea setting up the disqualification of a special judge, which is not supported by evidence, should be overruled.
DAVIDSON, JUDGE.
Appellant, Sam Swan, and W.E.T. Ogletree were jointly indicted for breaking into the county jail of Sabine County, for the purpose of liberating several prisoners therein confined.
Appellant was tried and convicted; hence this appeal. Motion to quash the indictment was made, because it did not allege that appellant and his codefendants "acted together" in the commission of the said offense; and further, that it omitted to charge the breaking to have been done "willfully" and by "force."
The terms "willfully" and "force" do not occur in the statute defining this offense. Penal Code, art. 212. It was not necessary to insert either term in the indictment.
Indictments charging two or more persons with the same offense are sufficient, in that respect, without averring they "acted together." Such allegation, when made, is surplusage. Watson v. The State, 28 Texas Cr. App., 34; Finney v. The State, 29 Texas Cr. App., 184.
The plea of defendant setting up the disqualification of the special judge is not supported by testimony nor shown to be true, wherefore the court did not err in overruling it. The record contains neither a statement of facts nor a bill of exceptions. We find no error in the record, and the judgment is affirmed.
Affirmed.
Judges all present and concurring.