Johnsey v State

Johnsey v State
1945 OK CR 32
157 P.2d 221
80 Okl.Cr. 84
Decided: 03/21/1945
Oklahoma Court of Criminal Appeals

(Syllabus.)

The syllabus in the case of Perry v. State of Oklahoma, 80 Okla. Cr. 58, 157 P.2d 217, is adopted as the syllabus in this case.

1. Escape Statutory Provision. 21 O. S. 1941 § 443 provides for punishment for one who escapes from prison, either "while confined therein, or while permitted to be at large as a trusty." For history of this statute see opinion.

2. Same-"Escape" Defined. An escape has been broadly defined as the voluntary departure of a person with or without force from the lawful custody of an officer or from any place where he is lawfully confined, or as it is more tersely stated, the unlawful departure of a prisoner from the limits of his custody

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or the act of a prisoner in regaining his liberty before release in due 4pourse of law.

3. Same-Escape by One at Large as Trusty. One who was an inmate of the State Penitentiary but who was "permitted to be at large as a trusty," and escapes, may be charged and punished under 21 O. S. 1941 § 443.

4. Same-Sufficiency of Information. An information charging one with escape which follows substantially the language of the statute and states the offense clearly and distinctly in ordinary and concise language without repetition, and in such manner as to enable a person of common understanding to know what is intended, will not, on demurrer, be held insufficient to charge an offense.

5. Constitutional Law-Constitutional Questions not Passed Upon Unless Properly Before Court. While courts will not refuse to pass on the constitutionality of statutes in any proceeding in which such a determination is necessarily involved, needless consideration of attacks on their validity and unnecessary decisions striking down statutes will be avoided. Courts will not assume to pass upon constitutional questions unless properly before them.

Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

Joseph Johnsey was convicted of the crime of escaping from a state prison, and he appeals. Affirmed.

H. I. Aston, of McAlester, for plaintiff in error.

Randell S. Cobb, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Paul Gotcher, Co. Atty., of McAlester, for defendant in error.

BAREFOOT, P. J. Defendant, Joseph Johnsey, was charged in the district court of Pittsburg county with the crime of "escaping from a state prison;" was tried, convicted and sentenced to, serve a term of two years in the State Penitentiary, and has appealed.

Defendant was charged by information with the crime of "escaping from a state prison," it being charged that he was confined in the State Penitentiary at McAlester by

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reason of having been convicted and sentenced from Oklahoma county to serve a term of seven years for the crime of second degree burglary.

This is a companion case of that of Perry v. State, 80 Okla. Cr. 58, 157 P.2d 217. Identical questions were presented in each case, and they were consolidated and briefed together. The opinion rendered in the Perry Case is adopted as the opinion in this case.

The judgment and sentence of the district court of Pittsburg county is affirmed.