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HUBERT ALLEN BROWN, JR. v. STATE OF MISSISSIPPI

OCTOBER 25, 1989

HUBERT ALLEN BROWN, JR.
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, PITTMAN AND BLASS.

DAN LEE, PRESIDING JUSTICE, FOR THE COURT:

On October 31, 1983, appellant received two (2) five (5) year sentences in the Mississippi Department of Corrections for the crime of uttering a forgery pursuant to a conviction in the County Court of Desoto county. On September 12, 1985, appellant was paroled from the Mississippi State Penitentiary.. Then, on April 17, 1986, he violated his probation resulting in a warrant being issued by the Mississippi Corrections Department for his arrest.

An affidavit for forgery was signed by Jimmy G. Holly on June 10, 1986 against appellant and a second warrant was subsequently issued for the arrest of appellant by Justice Court Judge, Donald W. Bond, on June 10, 1986. Appellant was captured by the Montgomery County, Mississippi, county sheriff and incarcerated in the Montgomery County Jail. On or about September 27, 1986, appellant allegedly escaped. He was recaptured in December, 1986 in the state of Tennessee and returned to the Montgomery County jail in January, 1987. On October 19, 1987, he was tried before a jury and found guilty of escape and sentenced pursuant to Miss. Code Ann. 97-9-49 (1) (Supp. 1987) to a term of three (3) years, from which said sentence and judgment, appellant appeals to this Court.

 Appellant offers the following issues for determination:

 (1) Whether Hubert Allen Brown, Jr. was lawfully confined in the Montgomery County Jail by virtue" of an arrest on charge of felony and by virtue of a conviction on a charge of felony, "(Record Excerpt 1) as alleged in the indictment.

 (2) Appellant was allowed to leave the Montgomery County Jail on the night of September 27, 1986 by a deputy sheriff to go home for a couple of hours. Appellant did not return. The question presented here is whether the deputy sheriff was an" authorized person "as contemplated by the statute to entrust appellant to leave the jail for this purpose.

 STATEMENT OF THE FACTS

 The Sheriff of Montgomery County, Robert Tompkins, testified that prior to appellant's alleged escape he was holding appellant in the Montgomery County Jail based upon the warrant from the Justice Court and because the State Department of Corrections" did not have ample space for him to come back to Parchman, and they asked me to hold him. They had revoked his parole on a

 charge of forgery. "

 On the night of September 26 and the early morning hours of September 27, 1986, Paul Clark was working at the Montgomery Court jail as a deputy. A few minutes before or after midnight on September 26th, 1986, appellant, a trusty prisoner, told the Deputy Sheriff, Paul Clark, that" he had had permission from the sheriff to go home for a couple of hours. "The deputy sheriff did not check with the sheriff to ascertain if permission had been given. This deputy sheriff allowed appellant to leave the jail at approximately 12:15 A.M. with the understanding that appellant was to return at approximately 2:30 A.M. Appellant did not return.

 ISSUE #1

 WHETHER APPELLANT WAS LAWFULLY CONFINED IN THE MONTGOMERY COUNTY JAIL AT THE TIME OF HIS ALLEGED JAIL ESCAPE?

 Stated briefly, Appellant argues he was not lawfully confined at the time he was given permission by an authorized deputy sheriff to leave the jail for a short period of time. Furthermore, since his incarceration, he had not been afforded a hearing, nor the opportunity to post bond nor was he given the opportunity to be represented by counsel. Therefore, he was justified in not returning, a proposition the State strongly refutes. We agree with the state and hold that" public policy supports the requirement that a prisoner use legal methods, rather than escape, to vindicate his rights. "

 " Lawful custody "is required to sustain an escape conviction. Miller v. State, 492 So. 2d 978, 981 (Miss. 1986). However, we disagree with appellant's contention that the irregularities alleged here so contaminated the custody as to make ...


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