Floyd v. State , 140 Miss. 884 ( 1925 )

^* Headnote 1. Escape, 21 C.J., Section 59 (Anno). The appellant was convicted in the circuit court of Warren county on a charge of attempting by force and violence to escape from the county jail of said county while lawfully imprisoned in such jail in pursuance of a sentence imposed after a conviction for the crime of robbery. For the offense of attempting to escape from jail he was sentenced to the penitentiary for ten years, and from this conviction and sentence this appeal was prosecuted.

We do not think there is any merit in the contention that the testimony is insufficient to sustain the conviction, and consequently the judgment of conviction must be affirmed. We think, however, that the trial court was without authority to sentence the appellant to serve ten years in the penitentiary for attempting to escape from the county jail.

The statutes dealing with the escape of prisoners are sections 1149 to 1160, Code of 1906 (sections 876 to 887, Hemingway's Code). The only two of these sections which prescribe so great a penalty as ten years in the penitentiary are sections 1149 and 1150, Code of 1906 (sections 876 and 877, Hemingway's Code), but these two sections deal only with the crime of aiding felons in escaping or attempting to escape. Section 1156, Code of 1906 (section 883, Hemingway's Code), provides a penalty of not exceeding five years in the penitentiary in case any person sentenced to the penitentiary for any term less than life shall escape from such prison, or shall escape from custody before confinement therein. Section 1049, Code of 1906 (section 777, Hemingway's Code), provides that an attempt to commit any offense less than capital may be punished "for a period or for an amount not greater than is prescribed for the actual commission of the offense so attempted," provided no other penalty is prescribed for an attempt to commit such an offense. Since the appellant was confined in jail under a penitentiary sentence at the time of the alleged attempt to escape, this section would authorize the imposition of the maximum penalty of five years provided under said section 1156, Code of 1906 (section 883, Hemingway's Code), if no other penalty was prescribed for such an offense. However, section 1159, Code of 1906 (section 886, Hemingway's Code), expressly provides that — "Every person lawfully imprisoned in the county jail, . . . who shall attempt by force or violence to escape therefrom, shall, upon conviction, be imprisoned in the county jail not more than one year."

The broad language of this statute covers the case of every person lawfully imprisoned in a county jail who shall attempt by force or violence to escape therefrom, and seems to provide the only penalty for such an attempt. The judgment of conviction in the court below will therefore be affirmed, but the judgment sentencing the appellant to ten years in the penitentiary will be reversed, and the cause remanded for proper sentence.

Affirmed in part and reversed in part.