Rushing v. State

240 So. 2d 618, 1970 Miss. LEXIS 1308

Opinion

SMITH, Justice:

Joseph Rushing, a convict lawfully confined in the State Penitentiary, was indicted for breaking prison and escaping. This appeal is from his conviction of that offense.

The factual situation in Rushing’s case is in all material respects similar to that set out in the opinion in Brown v. State of Mississippi, 240 So.2d 615, decided by this Court November 2, 1970. The principles announced in Brown control here. As in Brown, there was no “breaking” and no force was employed by appellant in effecting his escape from prison. Appellant’s conviction will be affirmed as to the lesser constituent crime of escape and the case will be remanded to the trial court in order that an appropriate sentence may be imposed for that offense.

Reversed as to conviction of breaking prison and escaping; affirmed as to conviction of escape; remanded for resentencing as to escape.

GILLESPIE, P. J., and RODGERS, JONES and ROBERTSON, JJ„ concur.