Defendant was convicted by a jury of attempting to escape from a state institution in which he was lawfully confined. Section 557.351, V.A.M.S., 1959. (All statutory references are to this revision.) Under the Habitual Criminal Act, Section 556.280, the court assessed punishment at three years confinement. Defendant has appealed.
Prior to the proceedings now challenged, defendant had been charged only with attempt to escape. With counsel, he had waived a preliminary hearing, entered a plea of guilty and been sentenced to a term of two years. His pro se motion to vacate this sentence and judgment under Rule 27.26, V.A.M.R. was sustained by the trial court. The state, with leave, filed the amended information with which we are now concerned. Under the provisions of Section 556.280, it further charged defendant with being a second offender. New counsel was appointed, and from the record it is obvious he has represented defendant at all stages of this proceeding with diligence and dеdication to his assigned task.
Defendant, being convicted of. Robbery First Degree, had been committed to the penitentiary in Jefferson City. After a quarantine period of thirty days, he was assigned to the Missouri Training Center For Men at Moberly. He was assigned tо work in the printing shop which was located some distance from the living quarters. This work area was surrounded by its own fence in addition to the two perimeter fences. On the date of the alleged offense, it is agreed defendant did not leave the shop at 4:15 p. m. with the other inmates but hid in a tool cabinet. Sometime later *455 he left the shop through a window and was found at about 10:15 p. m. lying in a ditch some 125 to 150 feet away from the print shop. It appears the fence was a similar distance farther away. When apprehended, defendant had in his possession: a pair of wire cutters (7 or 8 inches long), a knife-like tool (10 to 12 inches long) used to clean lead from the linotype machine and a $1.00 bill. Each of the items listed was known as contraband at the institution. Soon thereafter, defendant was transferred back to the main penitentiary in Jefferson City.
Defendant testified he had no thought of escaping but only sought to violate such regulations as would assure his return to Jefferson City. This desire for transfеr resulted from two incidents which defendant described. On the day of his arrival in Moberly, at the first meal, he selected a table at which to eat. A brief argument developed when another inmate said it was his place. When told that each had his own рlace to eat, defendant said, “I told the dudes I was sorry for taking their table and got up and left.” Approximately two months later, while combing his hair in the washroom, he said an inmate “touched me on the back side (buttock) and I didn’t like it.” With the expressed thought, “I guess he was trying to get me into some kind of a homosexual act,” defendant hit the alleged offender. Later that day, two friends of the latter asked defendant if he was “tough,” and he considered their further comments to be a threat to him. No other sрecific incidents were related. Defendant further testified he had advised the superintendent, both personally and by letter, of his desire to be transferred from Moberly. The superintendent did not recall either request.
The alleged errors are numеrous as counsel complied with defendant’s request that his pro se brief be incorporated into that of counsel.
Two attacks are directed toward the information. First, that after setting out that defendant was lawfully confined, it only provided thаt (he) “ * * * did unlawfully and feloniously attempt to escape therefrom and go at large * * * ” and thus failed to detail the manner by which he attempted to escape. We find the allegations, in the language of the statute, sufficient to support the judgmеnt. State v. Gooch, Mo.,
It is further contended that the evidence was insufficient to support the jury’s verdict. In addition to the evidence previously outlined, there was testimony that after the ten o’clock p. m. “head count,” guards usually were removed from the *456 perimeter fence and the lights illuminating the fences were extinguished. The jury had this fact before it, and could properly have determined that, but for defendant’s absence being detected at this count, he could have approached thе fences with the tools at hand without fear of lights or guards. Cases involving other attempted escapes are of little value as each must rest on its own facts. We are convinced that the many overt acts of defendant were sufficient tо authorize the jury to find that he had passed the preparatory stage, and was in the act of attempting to escape when caught. It was for the jury, not this court, to accept or reject his defense that it was all an act.
Defendant further complains that the instructions given did not adequately submit his defense. In a rather ambivalent approach, it is argued that the jury should have been instructed to consider: (1) that conditions justified his attempt to escape, and (2) that he was only feigning аn escape to encourage his transfer. The first argument cannot be sustained, even if it were decided the facts evidenced an intolerable situation, because an attempt to escape is not justified by reason of conditions existing incident to penal confinement. State v. King, Mo.,
It is next argued that defendant was entitled to a preliminary hearing after (1) the information was amended to include the second offender charge, or, because (2) his original sentence had been vacated. The argument cаn not be sustained for either reason. As to the first, “The allegation of a prior offense goes merely to the matter of punishment and the magistrate has nothing whatever to do with it.” State v. Wilwording, Mo.,
It is further charged that the trial court erred in allowing the state to prove the prior conviction of defendant in violation of the procedure designated in the Habitual Criminal Act. This act, Section 556.280, as amended Laws 1959, does provide that, “Evidencе of the prior conviction * * * shall be heard and determined by the trial judge, out of the hearing of the jury * * This argument creates an interesting question in view of the long established law that punishment can be assessed only for attempting to escape frоm a
lawful confinement.
State v. Whalen,
Defendant next contends it was error for the trial court to allow the prosecuting attorney to express opinions as to defendant’s guilt. It is well established that *457 opinion of counsel on either side is not relevant to the issues and should be avoided. Mo. Digest, Criminal Law, <⅞=,720½. In those instances where a reasonable inference is created that counsel has knowledge of facts not in evidence, it is considered a reversible error. However, in the instant case, although not approved, the argument wаs not clearly prejudicial. It appears to have been an opinion based on the admitted evidence as it followed immediately after a comment that “the facts prove that he was attempting to escape.”
The trial court did not err in sustaining an objection to a question of the defense which sought to have a witness testify homosexual practices were prevalent in Moberly. There was no offer of proof made nor any effort to show defendant tо have been so involved.
Defendant last contends the imposition of a three year sentence, instead of the two years originally pronounced, was for no apparent reason other than to punish him for pursuing his constitutional right to a new trial. In other words, he is now “worse off” by moving under Rule 27.26 to have the original sentence vacated for reasons with which the sentencing court agreed. Patton v. State of North Carolina, D.C.,
The case need not be remanded for this court, under the provisions of Criminal Rule 28.15, may and does hereby modify the sentence and judgment to provide that defendant be committed to the custody of the State Department of Corrections for a term of two years.
As modified, the judgment is affirmed.