BEFORE WALKER, BOWLING AND PRATHER
WALKER, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal from the Circuit Court of Humphreys County wherein appellant who was serving a term of less than life in the penitentiary was indicted for (1) aggravated assault upon a law enforcement officer; (2) kidnapping and (3) attempted escape from the Department of Corrections by violence. Following trial by jury, he was found guilty of simple assault on Count I; guilty on Count III; and not guilty on Count II. He was sentenced on Count I to serve a term of five years in the custody of the Mississippi Department of Corrections and a term of ten years on Count III to run consecutively to that in Count I and to the time he was presently serving. Aggrieved with this decision, he has perfected his appeal to this Court, assigning the following as error:
(1) The trial court erred in allowing the State to proceed upon a multicount indictment when such indictment is neither provided for nor allowed under Mississippi Law, and thus placing appellant three times in jeopardy by the state's proceeding to try all three charges against appellant at one time, to-wit: Aggravated assault, kidnapping and attempting to escape by force or violence;
(2) The trial court erred in overruling appellant's demurrer to indictment and motion for directed verdict as to Count III (the attempted escape charge). The statute under which appellant was indicted, Mississippi Code Annotated section 97-9-47 (1972), refers to attempted escape from "the penitentiary" by force or violence to any person. The indictment and proof in this cause indisputably showed that the attempted escape was committed at a place other than "the penitentiary" , and therefore, appellant's actions violate no Mississippi statutes; and
(3) The trial court erred in sentencing the defendant to ten years in the custody of the Mississippi Department of Corrections on the charge of attempted escape by force or violence. This sentence is excessive and cruel and unusual punishment since the same escape charge, when committed from a county jail, carries a maximum sentence of only one year.
The appellant did not take the witness stand nor offer any witnesses in his own behalf. According to the state's witnesses on August 13, 1981, the appellant, after having been transported to the University Medical Center in Jackson and while being returned to Parchman penitentiary, held a zip-gun on Officer Williams, the driver of the Parchman van, forcing Williams to drive off the normal route to the penitentiary.
The van was occupied by four officers, two in the front and two unarmed in the rear of the van and five other inmates. Appellant told the officers he was serving a thirty-five-year sentence without parole and wanted his freedom. During the incident the officers were able to overcome appellant and transport him back to the penitentiary.
The appellant initially asserts a multicount indictment under which he was indicted is neither provided for nor allowed under Mississippi Law. His demurrer to the indictment was overruled and he was tried in one proceeding for the three charges arising out of the August 13, 1981 incident. Following trial he was found guilty under Count I of simple assault upon a law enforcement officer and sentenced to a term of five years and under Count III was found guilty of attempted escape by force or violence and received a ten-year sentence. He was found not guilty under Count II of kidnapping.
As early as 1854 in Sarah (a slave) v. State, 28 Miss. 267, this Court addressed the propriety of a two-count indictment. The appellant asserted in part it was error to
overrule her motion to quash the indictment which charged two distinct, separate and independent felonies: (1) Preparation by a slave of arsenic with intent to kill; and (2) the administering by a slave of the arsenic with intent to kill.
In upholding the lower court's overruling the motion to quash, the court noted that the felonies charged differed neither in character nor in the punishments and they referred to the same transaction, depending necessarily to some extent on the same evidence. The granting or denial of a motion to quash in this regard was a matter resting within the discretion of the the court. The case was reversed on other grounds.
In 1897 in State v. Rees, 76 Miss. 435, 22 So. 829, the lower court sustained appellee's demurrer to an indictment containing two separate felonies, the first punishable by a twenty-year sentence, the second punishable by not more than a ten-year sentence. The Court stated:
The [circuit] court exercised the discretion, given it in such cases, correctly, that the prisoner might not he embarrassed in his defense, and relieve itself of the embarrassment which might have arisen as to what judgment to render on a general verdict of guilty.
The Court went on to say:
The settled rule in this state is that it is bad practice to join in the same indictment counts for distinct felonies of differing degrees, differently punished; and that, if that be done, the court may, in its discretion, on timely and proper objection, quash the indictment. The court here has exercised its discretion in that way by sustaining the demurrer. To hold that it erred would be now to declare that good practice which has always been condemned as bad, and to declare that the trial court has no discretion, in such cases, to quash such an indictment.
As noted the case presented a different question from one which arises where the trial court in the exercise of its discretion ...