Jenks v. State

• Decision Date: 12 December 1896
• Citation: 39 S.W. 361
• Parties: JENKS v. STATE.
• Court: Arkansas Supreme Court

39 S.W. 361

JENKS v. STATE.

Supreme Court of Arkansas.

December 12, 1896.

Appeal from circuit court, Pulaski county; Robert J. Sea, Judge.

Ed Jenks, having been convicted of escape, appeals. Affirmed.

The appellant, Ed Jenks, was a convict serving a term in the penitentiary for the crime of burglary and larceny. While thus serving as a convict he was made a "trusty" by the commissioners of the penitentiary. He was afterwards sent with other convicts from the walls of the penitentiary to a camp or stockade near the state insane asylum, upon which the convicts were at work. After being made a trusty, he was not required to eat or sleep with other convicts, called "linemen," but ate at a table prepared for trusties, and slept in a house on the outside of the stockade in which the linemen were confined. He was not under guard, and was allowed to go at large occasionally, within certain limits, but, in common with other trusties, was required to report to the warden, perform certain duties, and to obey prison rules. While at large on one occasion he left the county and state, and did not return until brought back. The grand jury returned an indictment against him for the crime of escape. Upon a trial under this indictment the defendant was convicted and sentenced for the crime of escape.

T. J. Oliphant, for appellant. E. B. Kinsworthy, Atty. Gen., for the State.

RIDDICK, J. (after stating the facts).

The question presented is whether the defendant is guilty of an escape, as described in the indictment. Our statute provides that "if any convict shall escape, on conviction thereof, by indictment, he shall suffer such additional imprisonment as the jury before whom he may be tried shall direct, not less than five nor more than ten years." Gould's Dig. p. 833, § 8.¹ Although Jenks had been made a trusty, and was not confined in the walls of the penitentiary, or kept under guard, yet he was required to remain within certain bounds, to do work, and to obey prison rules. He was, in law, still a convict in custody, serving his term of imprisonment. When, therefore, he fled from the county and state, he committed the crime of escape, for the punishment of which the statute above referred to was passed. Riley v. State, 16 Conn. 47; 1 Russ. Crimes (8th Am. Ed.) p. 416; 2 Whart. Cr. Law, § 1678.

But the indictment alleges that Jenks escaped from the penitentiary, and it is said that the proof does not sustain the allegation. The evidence shows that Jenks was not at the time of his escape confined in the penitentiary, nor did he escape therefrom, but he escaped while outside of the penitentiary, and outside of the stockade where the other convicts were confined. It is contended that this is a fatal variance, but we are of opinion that this contention cannot be sustained. If the offense was one of a local character, so that the house or place in which it was committed must be alleged and proved, then the description of such house or place would be material, and should be proved as alleged. The recent case of Bryant v. State (Ark.) 36 S. W. 188, was a case of this kind. The indictment there was for a violation of a...