Bradford v. State , 149 Ala. 1 ( 1907 )

TYSON, C. J. —

When this case was here on former appeal, it was reversed on account of an- erroneous sentence. It was then held -that the trial court should have imposed the punishment fixed by section 4710 of the Code of 1896. That section makes it an offense for -any prisoner to escape from lawful custody, when there is no other punishment prescribed by law, etc. It does not malee, it an offense for a prisoner to attempt to escape, and therefore the punishment prescribed by it cannot be imposed where a conviction is had under an indictment charging such' an attempt as here. Nor does section 5306 have the field of operation accorded to it in the previous opinion. Indeed, it has no application whatever. Had the indictment charged the offense of an escape under section 4710, and the evidence established an attempt to escape, "it may be that this' section would have been applicable, and a conviction could have been' had under it. But in that case the punishment could not have been imposed as prescribed by section 4710, but as prescribed by section 5414. And clearly, if tlie indictment was not preferred under section 4707 of the' Code, of 1896, it charged no offense Avhatever, unless it was an offense at common law for a convict to attempt to escape, after sentence to the penitentiary and before its expiration, from the county jail where held in custody under authority of law.

But we are. of opinion that the offense here charged, though it may be defectively alleged, rendering the indictment subject'to demurrer, is the one defined by section 4707, and that the punishment imposed by the court in the first instance ivas not erroneous. Had the indictment alleged the defendant’s attempt to escape before the expiration of his sentence from the sheriff or jailer of Montgomery county having him in charge under authority of law, instead of his attempt to escape from the county jail of Montgomery county where he was held in custody under authority of law, there would scarcely be a diversity of opinion that it was preferred under this statute. By section 4461 of the Code of 1896 it is made the duty of the judge of the court, when a convict is sentenced to the penitentiary, to order such convict confined in the nearest secure jail; and there the convict is to be confined until the president of the board of inspectors shall direct his removal to his place of confinement or hard labor under the sentence. Section 4462 requires the sheriff having in his custody any person sentenced to the penitentiary to deliver such convict to the person who presents the written order of the president of the board of inspectors. With these two sections taken in connection with section 4707, it seems to us beyond cavil that tlie indictment was intended to charge, and did in fact charge, the offense defined by the latter section. It follows, therefore, the former opinion in this case on this point is wrong, and must be overruled. However, the. punishment of six months’ hard labor for the county imposed upon a remanclment of the cause, which the court clearly had a right to fix by a resentence, being within the period of limitation as to time prescribed by that section, the sentence pronounced must be held to be correct.

Affirmed.

Haralson, Dowdell, Simpson, and Denson, JJ., concur.