Appellant was convicted for aiding a prisoner to escape from the custody of the sheriff; his punishment, three years.
The record reflects that appellant went to the jail to visit his brother Douglas Daugherty; that he took money from Douglas Daugherty to buy a gun; that he bought a gun at a pawn shop in Dallas and delivered it to his brother in jail; that later, Gillingham, another prisoner, pulled the gun on the sheriff and jailer; that Douglas Daugherty and the other prisoner escaped jail and from the custody of the sheriff.
Appellant's confession was introduced which recited that he thought his brother was being held for burglary; that he was given $60.00 to buy a gun; that he paid $30.00 for the pistol and $5.00 for a box of shells; that he delivered the gun to his brother in the jail at Canton; that he wanted to help him; that he tried to talk him out of breaking jail; that he left his brother's car parked at the courthouse.
Appellant did not testify nor offer any evidence in his behalf. *Page 178
It is contended that the evidence is insufficient to support the conviction in that the conviction should have been under Article 326, P.C., denouncing aiding one charged with a felony to escape from jail.
Article 329, P.C., under which the conviction was had, was complied with. The State had the right and privilege to carve or to elect to prosecute as it did.
In Shannon v. State, 170 Tex.Cr.R., 338 S.W.2d 462, conviction was for theft; the proof showed robbery. The Court held that no successful complaint could be made that proof showed robbery and not theft; that the State may carve out of any transaction whatever crime the facts will support, and the accused is in no position to complain.
The sentence imposes punishment at not less than 3 years, nor more than 3 years confinement in the Texas Department of Corrections. The sentence is reformed to read not less than 2 years, nor more than 3 years in the Texas Department of Corrections.
Finding the evidence sufficient to support the verdict, and no reversible error appearing, as reformed, the judgment is affirmed.