Crosby v. Commonwealth

• Decision Date: 19 January 1932
• Citation: 242 Ky. 62
• Parties: Crosby v. Commonwealth.
• Court: United States State Supreme Court — District of Kentucky

242 Ky. 62

Crosby v. Commonwealth.

Court of Appeals of Kentucky.

Decided January 19, 1932.

Escape. — Prisoner taking advantage of hole dug in wall of jail by others did not "forcibly escape from officer or guard" within statute (Ky. Stats., sec. 1338).

It appeared that, when prisoner in question escaped with other prisoners, all of whom were confined in same part of

jail, there was no jailer or other officer in room or place from which escape was made, and that such prisoner took no part in digging hole in wall, but merely took advantage of it with others when it was dug. Ky. Stats., sec. 1338, provides in part that, if a person lawfully arrested on a criminal charge forcibly effects his escape from officer or guard, he shall be subjected to punishment specified.

Appeal from Hardin Circuit Court.

J.E. WISE for appellant.

BAILEY P. WOOTTON, Attorney General, and HAMILTON RICE, Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE DIETZMAN.

Reversing.

Appellant, Arthur Crosby, was, in the spring of 1930, confined in default of bail in the Hardin county jail awaiting trial under an indictment then pending in the Hardin circuit court for house breaking. There were a number of other prisoners confined in the same part of the jail as he was. On the 12th day of May, these prisoners, including the appellant, escaped from the jail by means of a hole which had been dug through the walls and a ladder of blankets reaching from this hole on the level of the second floor to the ground. Appellant was later apprehended and indicted under section 1338 of the Kentucky Statutes, which reads as follows:

"If a prisoner confined on a sentence of imprisonment, or to be whipped, or under a capias, escapes jail, or if a person lawfully arrested upon a charge for a violation of the criminal or penal laws forcibly or by bribery effects his escape from the officer or guard, he shall be confined in jail not less than six nor more than twelve months."

On his trial under this last indictment, appellant was found guilty and sentenced to serve six months in jail, and from that judgment this appeal is prayed.

It is conceded that the appellant cannot be convicted under that part of the statute covering the case of an escape of a prisoner confined on a sentence of imprisonment, inasmuch as appellant was not confined on a sentence of imprisonment, but was detained in default of bail awaiting trial. There is no contention, of course, that he was...