Saylor v. Commonwealth

• Decision Date: 08 May 1906
• Citation: 93 S.W. 48,122 Ky. 776
• Parties: SAYLOR v. COMMONWEALTH. SMITH v. SAME.
• Court: Kentucky Court of Appeals

93 S.W. 48

122 Ky. 776

SAYLOR v. COMMONWEALTH.

SMITH v. SAME.

Court of Appeals of Kentucky.

May 8, 1906

Appeal from Circuit Court, Knox County.

"To be officially reported."

John Saylor and John Smith were convicted of an escape, and they appeal. Reversed.

W. R Black, for appellants.

N. B Hays, Atty. Gen., and C. H. Morris, for the Commonwealth.

HOBSON C.J.

These two appeals involving the same facts will be determined together. At the April term, 1905, of the Knox circuit court appellants were fined for assault. The judgment in the case in these words: "This case was called for trial, the parties announced ready, and came a jury, *** who were sworn as the law directs, and, having heard the evidence and instructions of the court, returned the following verdict 'We, the jury, agree and find the defendants guilty, John Smith and John Saylor, and fix their fine at two and one-half dollars each and costs. If they fail to pay or replevy, they shall work same out on some public road at one dollar a day, one day for each dollar of fine and costs. W. B. Dozier, Foreman.' It is therefore adjudged by the court that plaintiff recover of the defendants the sum of $2.50 each and the costs of this prosecution, and if they fail to pay or replevy the fine and costs they will be and are required to work same out on some public road or street of this county, one day for each dollar of the fine and costs." When the verdict was returned, the circuit judge asked the defendants if they would pay or replevy the fine, and, they declining to do either, he directed the jailer to take charge of them. This the jailer did, and took them to jail. No order of court was made, except that above quoted, and no capias or mittimus was issued. The jailer simply took charge of the defendants under the verbal directions of the circuit judge. Two or three days after this the jailer put them in charge of a guard, who took them out to work on one of the county highways. While they were at work on the highway the guard needed some lumber for a culvert, and went off about 200 yards to get it, leaving appellants at work on the road. When he returned they had left the road, but were still in sight, and when he started after them they ran away. They were arrested a few days afterwards, and were indicted under section 1338, Ky. St. 1903: "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 under 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." They were found guilty, and their punishment fixed at six months' imprisonment...