50 Ga. App. 94 | Ga. Ct. App. | 1934
The indictment in this case charged that the defendant, having been previously convicted of a felony (breaking and entering a railroad-car), and sentenced to serve twelve months on the chain-gang of Ben Hill county, Georgia, and hav
The record discloses that upon the trial of the defendant for breaking and entering a railway ear, the jury found him guilty and recommended that he be punished as for a misdemeanor, and he was sentenced by the court to work on the chain-gang for a period of twelve months, and he was there confined to work out his sentence. The contention of counsel for plaintiff in error is that “if the defendant was convicted of a felony he would have been sentenced to the penitentiary,” and not to the chain-gang, and that “there is no law which deals with an escape when a person is convicted of a felony and is given a misdemeanor punishment.” The offense of breaking and entering a railroad-car with intent to steal, of which the defendant was convicted, is a felony. Penal Code (1910), § 181. Being given a misdemeanor punishment as a result of the recommendation of the jury, as provided by section 1062 of the Penal Code of 1910, does not alter the fact that he was convicted of a felony. Since he was convicted of a- felony, he was a felony prisoner, although confined in a county chain-gang. It is the offense and the conviction therefor, rather than the punishment, which determines the degree of the offense of escaping. Section 319 of the Penal Code of 1910, dealing with the “penalty for escapes in misdemeanor cases,” provides that “If any person shall be convicted of an offense below the grade of felony, and shall escape from the chain-gang . . he shall be guilty of a misdemeanor” (italics ours); and section 321 of the Penal Code, relating to felonies and under which the defendant in this case was indicted, provides that “If any person confined in the penitentiary shall escape therefrom and be thereafter retaken, he shall be indicted for an escape, and, on conviction, shall be punished by imprisonment and labor in the penitentiary for not less than three
The evidence authorized the defendant’s conviction of escaping from the penitentiary, and the court did not err in overruling the motion for a new trial, based upon the usual general grounds.
Judgment affirmed.