Bentley v. Com.
| Decision Date | 23 June 1954 |
| Parties | BENTLEY v. COMMONWEALTH. |
| Court | United States State Supreme Court — District of Kentucky |
Francis M. Burke, Pikeville, for appellant.
J. D. Buckman, Jr., Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.
This is a motion for an appeal from a judgment of the Pike Circuit Court convicting appellant, Joe Bentley, of the crime of escaping jail and fixing his punishment at 30 days in jail and a fine of $100. In seeking a reversal he insists the court erred: 1. in overruling the demurrer to the indictment; 2. in overruling his motion for a directed verdict; 3. in instructing the jury.
The indictment charged appellant with unlawfully, willfully and feloniously escaping from the Pike County jail while outside the jail to which he was committed by a judgment of the Pike Circuit Court upon conviction of a misdemeanor. Criticism is directed to the indictment because it does not charge appellant accomplished his escape 'forcibly or by bribery.'
In several cases we have held it was not necessary for a prisoner lawfully confined in jail under a judgment of conviction to use force or bribery in making his escape; that a prisoner is not justified or authorized in leaving jail of his own volition and in so doing he was guilty under the statute of escaping jail. Whitaker v. Com., 188 Ky. 95, 221 S.W. 215, 10 A.L.R. 145 (); Maggard v. Com., 173 Ky. 97, 190 S.W. 666; Saylor v. Com., 122 Ky. 776, 93 S.W. 48.
What is said here is not in conflict with Crosby v. Com., 242 Ky. 62, 45 S.W.2d 822, 823. There, the prisoner was not confined in jail under a sentence but was being held in default of bail while awaiting trial. Other prisoners unassisted or unadvised by him dug a tunnel under the jail wall and Crosby walked out. We there held his escape was from 'the officer or guard' and under KRS 432.370 such an escape to be a crime must be made by force or bribery. Our cases dealing with KRS 432.370 (formerly KS 1338) recognize the statute punishes two characters of escape: 1. from jail while the accused is serving a sentence under a judgment of court, in which event no force or bribery is necessary; 2. escaping from an 'officer or guard', which must be effected by force or bribery to violate the statute.
Further complaint is made because the indictment does not state the crime for which appellant had been convicted. However, the indictment averred appellant had been committed to jail 'upon a judgment, order and sentence of the Pike Circuit Court upon conviction of a misdemeanor.' This was sufficient without naming the specific misdemeanor of which appellant was convicted.
There is no merit in appellant's contention that the court erred in overruling his motion for a directed verdict. The proof, though not as definite and certain as it might have been, substantiates the charge in the indictment that while appellant was in jail under a conviction for a misdemeanor and while he was acting as a 'trusty', he escaped from jail.
A more serious question is raised on the instructions. Appellant was indicted for an offense denounced by KRS 432.370, which fixed the punishment at imprisonment for not less than six nor more than twelve months. The court erroneously instructed on the common law rather than on the statutory offense, and also...
To continue reading
Request your trial
-
Dill v. State
...by a statute pertaining specifically to that offense, the statute governs the punishment for the crime exclusively. Bentley v. Commonwealth, 269 S.W.2d 253 (Ky.).' 284 A.2d at The rationale of this view was implicit in the holding of this Court in State v. Gibson, 4 Md.App. 236, 242 A.2d 57......
-
Com. v. Fint
...to impose a criminal penalty against a convicted defendant which is less than the minimum prescribed by statute. Bentley v. Commonwealth, Ky., 269 S.W.2d 253, 255 (1954). Upon finding that Fint's vehicle was used in the commission or furtherance of the offense of which he was convicted or i......
-
Hopkins v. Com.
...be. Whitaker v. Commonwealth, 188 Ky. 95, 221 S.W. 215, 10 A.L.R. 145; Crosby v. Commonwealth, 242 Ky. 62, 45 S.W.2d 822; Bentley v. Commonwealth, Ky., 269 S.W.2d 253. The decision of this case rests on the meaning of 'forcibly' effecting the escape after having been arrested and before a c......
-
Lawson V. Com., 2000-SC-0024-TG.
...previously afforded the judiciary with respect to sentencing is abrogated once the legislature speaks to the issue. Bentley v. Commonwealth, Ky., 269 S.W.2d 253, 255 (1954). We have repeatedly recognized that this legislative prerogative extends to determinations of whether sentences should......