Appellant has been tried and. stands convicted under article 212 of the Penal Code, which provides that, “if any person shall break into any jail for the purpose of effecting the rescue or escape of a prisoner therein confined, or for the purpose of aiding in the escape of any prisoner so confined, he shall be punished by imprisonment in the penitentiary for a term not less than two nor more than six years.”
The indictment upon which he was tried is in proper form and is sufficient. (Willson’s Criminal Forms, No. 138, p. 77.) Appellant asked no special instructions in addition to the charge of the court as given to the jury, but saved a general exception to the charge given, to wit, “that it did not charge the law in the cauée.” No special defect is pointed out, but it is insisted in the brief of counsel that the charge is radically defective, notwithstanding it contained the statutory declaration of the crime in terms used above, because it omitted to explain to the jury the meaning and character of the word “break,” as used in the statute. It is insisted that the definition of the word “ breaking;” in burglary, to wit, that the slightest force is sufficient, as by the lifting of a latch, etc. (Penal Code, art. 708), does not and can not be made to apply to this character of case, since no legal definition of the word “break” as here used is given, as is done in burglary, and that in such conditions the rule is that all words - not specially defined are to be taken and construed in the sense in which they are understood in common language. (Penal Code, art. 10.) We think the unbolting of the door of the house by the parties in the first instance was sufficient, in contemplation of this statute, to constitute a breaking under the circumstances of the case.
*If it be conceded, however, that the failure to define the meaning of the word “break” is erroneous, there being no special exception saved to it on the ground of such omission, and no proper instruction upon the subject requested by defendant and refused by the court, the exercise of the authority to revise the charge and reverse the case for such error depends upon the inquiry whether the error was fundamental or calculated to injure the rights of the defendant. If found to be of that character, *30the defendant is entitled to a new trial, though he neither excepted to the charge nor asked further instructions. (Henry v. The State, 9 Texas Ct. App., 59; Leache v. The State, 22 Texas Ct. App., 314, where all the.authorities are collated; Cook v. The State, Id., 511.)
In this case it is contended that the evidence shows no such actual breaking into the jail as the word “break” is generally used and understood to mean in common language, because the entrance was effected through an unlocked door by simply turning a bolt, without any other violence to the house. Even if this were true, in so far as the first entry by the parties into the lower story of the house is proven, this lower story was not the apartment in which prisoners were confined. The cages and prisoners were up stairs. These parties, after getting into the lower hall by unbolting the door, waited until the jailer returned, and with threats of summary violence they forced him, at the muzzle of their pistols, to go up stairs and unlock the doors and cages for them. Such force was as illegal and as effectual as if they had crushed the doors in with battering rams. If, instead of forcing the jailor thus to open the door, any one of the parties had taken the key from him at the point of his pistol and then gone up stairs and unlocked the doors with it, can it for a moment be doubted- but that, in common language, it would be said, and with truth, that such party broke into the jail? We think not. When the jailor did as they commanded, it was just as though they had done the act with their own hands. “ Qui facit per alium facit per se,” is a maxim applicable in criminal as well as civil law. (Doss v. The State, 21 Texas Ct. App., 505; 6 Crim. Law Mag., 350.) Viewed in the light of the facts proven, even -if it be conceded that the charge of the court was erroneous in omitting to define the word “break,” the error is not fundamental, and is simply error without prejudice, which, without special exception thereto, is always harmless.
Exceptions were reserved to the acts, sayings and movements of John Williams and George Dennis, two of the parties implicated in the jail breaking, before and subsequent to the commission of the crime, and when this defendant was not present. As exhibited in the record, we are of opinion the testimony was properly admitted. A conspiracy between the parties and defendant is, we think, clearly established by the circumstances, when considered all together. What was said and done before consummation of the common design by any one or more of the *31conspirators, and in furtherance of it, was unquestionably admissible under well established rules. As to what was done in arresting and bringing back the two parties named, after the consummation of the act, and when defendant was not present, this was legitimate and admissiblé for the purpose of identifying all the parties connected with the crime.
There were five parties acting together. After releasing the prisoners they took them, with the jailor, out of town to a thicket, and there they got their horses and buggy and left with Henry Williams, whose rescue they were effecting, and turned the other prisoners and the jailor loose. It was night and so dark that the jailor could not see the parties^ or any of them, so as to identify them, but, before they left, he went up to shake hands with the prisoner, Henry Williams, and found that the prisoner was mounted upon a roan horse, and he also saw a white or gray horse in the crowd. That night the sheriff with a posse started in pursuit, and striking a trail, they followed it for many miles until the fleeing parties separated and took different directions. The posse from this point followed one of the trails. They trailed the buggy, and followed it until they came upon John Williams and George Dennis at a deserted ranch, and one of the horses they had with them was a roan horse. They arrested and brought them back to town. As before stated, this evidence was legitimate as going to prove the identity óf the parties who had committed the crime. There was no act or statement of the parties calculated in the slightest degree to injure the defendant permitted to be given in evidence. We see no error in the rulings of the court permitting the testimony in the first instance, and in refusing to strike it out in the second.
Objection was made to the testimony of Mrs. Heal Shelly, to the effect that a few days prior to the jail breaking the wife of John Williams told witness, at John Williams’s house, that the defendant in this case, who was also there, was an uncle of John Williams, and that she heard John call him “Uncle Ike.” If it be conceded that this testimony was hearsay, and consequently inadmissible, no injury could possibly accrue to defendant from it, because the witness Fred A. Beall, deputy sheriff of Holán county, who knew the Williams family, testified that John Williams was a nephew of this defendant. Moreover, Mrs. Shelly identified the defendant as the party she had seen and been introduced to at John Williams’s on the occasion referred to by her.
*32Opinion delivered October 19, 1887.It is urgently insisted that the evidence in the case is insufficient to connect this defendant satisfactorily and conclusively with the crime committed. We do not think so. On the contrary, we think the evidence, though circumstantial, fully warrants the findings of the jury. We are of opinion appellant has had a fair trial, and, having found no error in the record requiring a reversal of the judgment, the same is affirmed.
Affirmed.