
    2659.
    SMITH v. THE STATE.
    The crime of escaping from a chain-gang where municipal or misdemeanor convicts are worked is an act continuous in its nature, and is not finally completed until the convict is retaken. A person who knowingly assists a convict to escape from such a chain-gang, or to elude the officers after he has once gotten away and prior to his - recapture, is punishable under section 315 of the Penal Code of 1895.
    Decided September 28, 1910.
    Accusation of aiding escape; from city court of Columbus— Judge Tigner. April 23, 1910.
    
      Wynn & Wohhvender, for plaintiff in error.
    
      T. H. Fort, solicitor, contra.
   Powell, J.

The defendant was convicted of violating § 315 of the Penal Code of 1895, which provides: “If any person shall aid, or assist, or attempt to aid or assist, a prisoner to escape, so confined or imprisoned, he shall be guilty of a misdemeanor.” The expression, “so confined or iipprisoned,” refers to § 314 of the Penal Code, which provides: “If any person shall be convicted of an offense below the grade of felony, and shall escape from the chain-gang or other place of confinement or imprisonment for the violation of any municipal, county or State laws, and be thereafter retaken, he shall be guilty of a misdemeanor.”

The evidence discloses that while the chain-gang of the city of Columbus was being worked upon the streets, one of the convicts escaped, and that later in the day he met'the defendant and asked for an ax. The defendant furnished the ax, and the convict, in the defendant’s presence, cut off from his person the shackles which he was wearing pending his service in the chain-gang; rand by this the convict was able finally to make good his escape.

There are several sections of the Penal Code which relate to rescue and escapes. Some of these sections relate to rescue and escape from the personal custody of officers, others to escape from places of confinement — using the word “confinement” in a broader sense than the mere limits of prison walls. As to escapes from the personal custody of officers, the offense is complete whenever the prisoner gets entirely away. So long as the pursuit is in progress and the fleeing prisoner is in sight of the officers or posse, the escape is not complete; but when he outruns them or successfully eludes them and gets away, the escape is complete; and thereafter the offense of aiding an escape can not attach to that particular transaction. Cf. Perry v. State, 63 Ga. 402 (3).

We think (though it is not without some doubt, and only after considerable study of the question, that we come to this conclusion) that the rule as to escaping from a chain-gang is different. Where convicts are being worked upon a chain-gang, they are not, at least during working hours, usually confined within any special’ walls or bounds of imprisonment. Often the confinement is constructive rather than actual, especially in the case of a trusty. This would seem to justify the giving to the word “escape” a broader meaning where applied to chain-gang, than when applied to prisons generally or to the custody of officers.

It may also be noticed that Section 314 of the Penal Code, quoted above, seems to make the retaking of the prisoner a part of the crime. This apparent absurdity came about through the process of codification. By an examination of the several acts u*pon which the code section is based, it will be seen that the provision was that if a prisoner should escape from the chain-gang and be retaken, he should thereafter be indicted and punished as for a misdemeanor. We think that the object of framing the statute in this particular language was to make the crime of escaping from a chain-gang a continuous act, never finally completed so as to start the running of the statute of limitations in the prisoner’s favor until the time of a recapture; with the consequent result that a convict absenting himself from the chain-gang and from the officers, with the intention essential to an escape (that is, being absent otherwise than on some temporary mission consistent with his relationship as a convict), is to be considered as committing a violation of the statute, from the time of his leaving until the time of his recapture. Therefore, any one who knowingly aids ’a convict or attempts to aid him, either to get away from the chain-gang or to stay away, is guilty of violating section 315 of the Penal Code.

We think that the words, “so imprisoned,” found in section 315 of the Penal Code, were inserted not with the view of making it criminal to aid a convict only while he was actually in prison, but merely with the view of relating section 315 to section 314, and of distinguishing the aiding of the escape of misdemeanor or municipal convicts from the other offense provided for in section 316, of aiding felony convicts to escape — the latter being a higher offense. We have, therefore, come to the conclusion, that the transaction in the present case was criminal and punishable under section 315 of the Penal Code. Judgment affirmed.  