Escape from jail consists of any person who shall have been lawfully committed to any jail, escaping or attempting to escape from such jail.
Whoever commits escape from jail is guilty of a fourth degree felony.
History: 1953 Comp., § 40A-22-8, enacted by Laws 1963, ch. 303, § 22-8.
ANNOTATIONSSection does not require commitment under criminal charge. — This section does not require commitment on a criminal charge. A literal reading of the statute would indicate that any person who has been committed to jail pursuant to lawful authority who escapes or attempts to escape is guilty of escape from jail. State v. Alderette, 1990-NMCA-132, 111 N.M. 297, 804 P.2d 1116.
Commitment pursuant to arrest warrant. — Whether "committed" in this section means "placing in confinement" or "an order of confinement," defendant held by virtue of an arrest warrant for a petty misdemeanor was "committed" to jail when he left the jail through the roof. State v. Garcia, 1968-NMCA-007, 78 N.M. 777, 438 P.2d 521.
Physical confinement not required. — Physical confinement in jail at the time a defendant escapes is not an element required for conviction under this section. "Lawfully committed", as used in this section, includes situations in which an inmate has been lawfully ordered to be confined in jail and thereafter is temporarily released on a furlough, but is legally obligated to return to jail at a specific time. State v. Hill, 1994-NMCA-069, 117 N.M. 807, 877 P.2d 1110, cert. denied, 118 N.M. 90, 879 P.2d 91.
Kitchen part of jail. — Evidence that kitchen was used for preparation of prisoners' meals and that it was part of the jail, supported guilty verdict which necessarily determined that the kitchen was an integral part and parcel of the jail and that the defendant had escaped therefrom. State v. Weaver, 1971-NMCA-172, 83 N.M. 362, 492 P.2d 144.
Escape deemed from penitentiary, not jail. — Where the trial court had ordered the defendant released from the penitentiary into the custody of the county sheriff until after his arraignment, the order provided for a change in the location of his physical confinement but did not change the fact that the defendant's lawful custody or confinement was in the penitentiary, and the defendant was properly convicted of escape from the penitentiary under 30-22-9B NMSA 1978, rather than escape from jail under this section. State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545.
Escape from work detail while serving jail sentence. — Where the defendant was assigned to a work detail at the county fairgrounds while serving a lawful sentence at a county jail, and it was while so assigned that he escaped, the defendant was guilty of escape from jail. State v. Gilman, 1981-NMCA-123, 97 N.M. 67, 636 P.2d 886, cert. denied, 97 N.M. 483, 641 P.2d 514; State v. Coleman, 1984-NMCA-037, 101 N.M. 252, 680 P.2d 633, cert. denied, 101 N.M. 185, 679 P.2d 1283.
Defendant's failure to return home while being electronically monitored could not constitute an escape under this section since the statute requires the defendant to escape from a "jail" to which he or she has been committed and a person who is on home detention is not obliged to be in jail and cannot be said to be constructively in jail. State v. Martinez, 1998-NMCA-047, 125 N.M. 83, 957 P.2d 68, cert. denied, 125 N.M. 146, 958 P.2d 104.
Fundamental error to instruct the jury on escape from an inmate-release program when defendant was charged with escape from jail. — Where defendant was charged with escape from jail, and where, at trial, the district court judge instructed the jury using the uniform jury instruction that lists the essential elements for the crime of escape from an inmate-release program, defendant's conviction for escape from jail resulted in fundamental error, because the district court instructed the jury on a crime for which defendant was never charged. It is improper to instruct the jury as to a crime not formally charged if that crime is not a lesser-included offense of the crime formally charged. State v. Grubb, 2020-NMCA-003.
Sufficient evidence of escape from jail. — Where defendant was charged with escape from jail, and where at trial the state presented evidence that the district court revoked defendant's probation, sentenced him to two years and six months incarceration, and granted him furlough, and that defendant failed to report to the detention center at the end of the furlough period, there was sufficient evidence to support defendant's conviction for escape from jail, because based on the evidence presented, the jury could reasonably conclude that defendant failed to return to lawful custody or confinement within the time fixed for his return and that his failure to return was done willfully. State v. Grubb, 2020-NMCA-003.
Invalid conviction as defense. — So long as the commitment to custody is valid on its face, it is no defense to a charge of escaping jail that the incarceration was based on a violation of a law which was allegedly unconstitutionally applied. State v. Lopez, 1968-NMSC-098, 79 N.M. 235, 441 P.2d 764.
Law reviews. — For article, "The Grand Jury: True Tribunal of the People or Administrative Agency of the Prosecutor?" see 2 N.M.L. Rev. 141 (1972).
For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 27 Am. Jur. 2d Escape, Prison Breaking, and Rescue §§ 1, 2, 3, 4.
Escape or prison breach as affected by means employed, 96 A.L.R.2d 520.
Duress, necessity, or conditions of confinement as justification for escape from prison, 69 A.L.R.3d 678.
Conviction for escape where prisoner fails to leave confines of prison or institution, 79 A.L.R.4th 1060.
Duress, necessity, or conditions of confinement as justification for escape from prison, 54 A.L.R.5th 141.
30A C.J.S. Escape §§ 2 to 15.