Assisting escape consists of:

A. intentionally aiding any person confined or held in lawful custody or confinement to escape; or

B. any officer, jailer or other employee, intentionally permitting any prisoner in his custody to escape.

Whoever commits assisting escape is guilty of a third degree felony.

History: 1953 Comp., § 40A-22-11, enacted by Laws 1963, ch. 303, § 22-11.

Cross references. — For unlawful rescue of prisoner, see 30-22-7 NMSA 1978.

For officer of penitentiary aiding escape of prisoner, see 33-2-8 NMSA 1978.

Harboring or aiding felon does not supersede this offense. — The offense of harboring or aiding a felon was not meant to supersede the crime of assisting escape. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306, cert. denied, 108 N.M. 668, 777 P.2d 907.

Charge not double jeopardy. — Charging defendant with three counts of assisting escape, in a prosecution arising out of the escape of three prison inmates, did not violate the constitutional prohibition against double jeopardy. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306, cert. denied, 108 N.M. 668, 777 P.2d 907.

Person properly charged with offense. — An individual who intentionally aids a person to avoid recapture, who he knows has escaped from lawful custody, may properly be charged with the offense of assisting escape. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306, cert. denied, 108 N.M. 668, 777 P.2d 907.

Defenses of consanguinity or affinity not applicable. — Nothing in this section evinces a legislative intent to immunize a defendant from prosecution for assisting the escape of inmates because of consanguinity or affinity. The defenses of consanguinity or affinity recognized under 30-22-4 NMSA 1978 are not applicable to a charge filed under this section. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306, cert. denied, 108 N.M. 668, 777 P.2d 907.

Defect in indictment insubstantial. — Although the indictment charged that defendant assisted a prisoner in escaping from jail while the statute condemned assisting a prisoner in his endeavor to escape, such defect was formal rather than substantial as the act of escape includes endeavoring to escape, and as this slightly faulty allegation was not called to the attention of the trial court, it was cured by the verdict. State v. Montgomery, 1923-NMSC-001, 28 N.M. 344, 212 P. 341.

Merger of this section and furnishing articles for escape. — The charges of assisting escape and furnishing articles for escape should not be merged for sentencing purposes when the facts supporting the convictions are not identical in that the jury could properly have found that the defendant's participation in the escape extended significantly beyond furnishing tangible objects to effect the escape. State v. Gibson, 1992-NMCA-017, 113 N.M. 547, 828 P.2d 980, cert. denied, 113 N.M. 524, 828 P.2d 957.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 30A C.J.S. Escape §§ 19 to 25.