Savage v. Alvis, Warden , 109 Ohio App. 523 ( 1959 )

The Court of Common Pleas of Franklin County, Ohio, upheld petitioner's objection and ordered that the writ of habeas corpus be allowed and that the petitioner be released from custody. An appeal was taken from that order to this court. The Attorney General states in his brief that the appeal on questions of law is brought in order to clarify for the law-enforcement authorities the statutory construction of Sections 2901.11 and 2917.23 of the Revised Code.

It is clear that more than one penal statute may be enacted covering the same offense, but a special statute covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms. See Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549; and State, ex rel. Kearns, Pros.Atty., v. Rindsfoos, 161 Ohio St. 60, 118 N.E.2d 138, 43 A. L. R. (2d), 1316.

Section 2901.11 of the Revised Code makes an escape from confinement a charge carrying a possible penitentiary sentence, and, therefore, it designates such a crime as a felony. (McKelvy v. State, 87 Ohio St. 1, 99 N.E. 1076 and City of Cleveland v.Betts, 168 Ohio St. 386, 154 N.E.2d 917.)

Section 2917.23, Revised Code, designates escape from the workhouse as a misdemeanor, since the penalty provided does not call for confinement in the penitentiary.

In the case of In re Cooper, 134 Ohio St. 40,15 N.E.2d 634, the Ohio Supreme Court, in construing two statutes dealing with child support, held as follows:

"Different statutes providing different penalties for offenses against minors will not be deemed inconsistent or in conflict with each other where the principal elements thereof are similar but are accompanied by varying circumstances aggravating or affecting the degree of such offenses."

Since the only element of the offenses to be considered under either of these sections is the escape, we do not have "varying circumstances aggravating or affecting the degree of such offenses."

We do not believe that an offense can be both a felony and a misdemeanor, and we do not believe that the laws should be written so as to permit prosecutions under general provisions of a penal code where the Legislature has made special laws available to cover the specific offenses. Here it is apparent that these two criminal statutes are repugnant as to the punishment that may be inflicted for an escape from the workhouse; and, unless they can be reconciled, they should not be permitted to stand.

Cities have been given the power to establish workhouses under Section 715.16 of the Revised Code, and Chapter 753 of the Revised Code leaves the control and supervision of the workhouses, erected by the city, with the municipal government. Section 2917.23 of the Revised Code, in providing for the enforcement of that section prohibiting escapes from the workhouses, states that "the court which originally sentenced such person has jurisdiction concurrently with the Court of Common Pleas in the county in which such workhouse is situated." A Municipal Court could not have final jurisdiction over the case if the offense of escape from the workhouse is a felony.

Section 2901.11, Revised Code, is a general statute and refers to escapes from confinement imposed as a result of a criminal, contempt, or probate proceeding, and is, therefore, not limited to escapes from penal institutions. Section 2917.23, Revised Code, is specific and refers only to escapes or attempts to escape from the workhouse, as does Section 2917.24. Chapter 753, dealing with workhouses, leaves the management of the workhouses and the discharge and parole of their inmates in the hands of city officials where the workhouses are erected by the city and treats them differently from state penal institutions.

While we are not dealing specifically with a municipal ordinance prohibiting escape from the workhouse, the effect of the ruling on such ordinances is clear; and if an escape from the workhouse is a felony, a municipality could not by ordinance make such an escape a misdemeanor. (City of Cleveland v. Betts,supra [168 Ohio St. 386.]) Since Section 2901.11, Revised Code, did not specifically repeal Section 2917.23, and the latter section applies specifically and only to escapes from a workhouse and Section 2901.11 applies generally to escapes from all institutions, it would appear that the Legislature intended to keep escapes from the workhouses in a special category where they have been since first enacted into law in 1869.

It, therefore, follows that escapes from a workhouse should be chargeable under Section 2917.23, Revised Code, that the charge in this case was brought under the wrong section, and that the Court of Common Pleas was correct in allowing the writ and ordering the release of the petitioner.