Moore v. Commonwealth
| Decision Date | 22 March 1946 |
| Citation | 301 Ky. 851,193 S.W.2d 448 |
| Parties | MOORE v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Knox County; Flem D. Sampson, Judge.
Roy Moore was convicted of escaping jail after felony conviction and he appeals.
Reversed.
J. B. Campbell, of Barbourville, for appellant.
Eldon S. Dummit, Atty. Gen., and Guy H. Herdman, Asst. Atty. Gen for appellee.
Appellant Roy Moore, was indicted under KRS 432.370 for forcibly escaping the Knox County jail while confined therein on a charge of house breaking. His trial resulted in a conviction with his punishment being fixed at confinement for one year in the penitentiary and on this appeal he complains: 1, that his demurrer should have been sustained to the indictment; 2, that he used no force in breaking jail, hence under the statutes denouncing that offense he was entitled to a directed verdict; 3, that the judgment upon which he was confined in jail at the time of his escape was reversed by this court, therefore he was illegally confined and violated no law in escaping jail.
Moore was convicted in the Knox circuit court on November 5, 1943 of the offense of dwelling house breaking and his punishment fixed at confinement in the penitentiary for nine years. While his appeal from the judgment was pending in this court Moore and several others escaped from the Knox County jail on April 11, 1944. It does not appear that his escape was called to the attention of this court and on June 23, 1944, we reversed the judgment convicting him of house breaking, Moore v. Commonwealth, 298 Ky. 14, 181 S.W.2d 413. Moore was apprehended, returned to jail, tried and convicted on the indictment charging him with escaping jail, as above indicated.
The general demurrer to the indictment was properly overruled. It is provided in KRS 432.370(1) that one confined in jail on a sentence of imprisonment or under a capias who forcibly or by bribery effects his escape shall be imprisoned for not less than six nor more than twelve months; subsection (2) of 432.370 fixes the punishment at one year in the penitentiary for any person convicted of a felony who escapes jail. The indictment averred that the appellant 'did unlawfully, wilfully and forcibly escape from jail, of Knox County, Kentucky, while confined therein for a violation of the Criminal and Penal laws of the State of Kentucky, to-wit: on a charge of house breaking'.
It is apparent that the indictment did not charge appellant with a felony under subsection (2) of the applicable statute because it did not aver that he was being held in jail after having been convicted of a felony, but the indictment is sufficient to charge him with the misdemeanor under subsection (1) of the statute since it alleged he was confined in jail on a charge of house breaking, which is equivalent to charging that he was held in jail under a capias. However, the court instructed, not on the misdemeanor as charged in the indictment, but on the felony covered in subsection (2) of the statute, a higher crime than the one for which appellant was indicted. This was reversible error since one may not be convicted of an offense of a higher degree than that charged in the indictment. Criminal Code of Practice, § 265; Madden v. Commonwealth, 202 Ky. 782, 261 S.W. 273.
Counsel for appellant is in error in arguing that his client used no force in breaking jail and was entitled to a directed verdict under the opinion in Crosby v. Commonwealth, 242 Ky 62, 45 S.W.2d 822. Charles Miller, a fellow inmate in the jail with appellant at the time of escape, testified that Moore helped saw the bars protecting a window. This distinguishes the instant case from the Crosby opinion, which recites that Crosby took no part in digging the hole through which he and other prisoners escaped. Appellant in his brief makes a sharp attack upon Miller's credibility, arguing that as he was confined in jail on a charge of rape his testimony is unworthy of belief. But the several witnesses who testified that Moore took no part in sawing the window bars were likewise confined in jail and no doubt the jury took into consideration the character of all the...
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