Escape from penitentiary consists of any person who shall have been lawfully committed to the state penitentiary:

A. escaping or attempting to escape from such penitentiary; or

B. escaping or attempting to escape from any other lawful place of custody or confinement and although not actually within the confines of the penitentiary.

Whoever commits escape from penitentiary is guilty of a second degree felony.

History: 1953 Comp., § 40A-22-9, enacted by Laws 1963, ch. 303, § 22-9.

Cross references. — For officer of penitentiary aiding escape of prisoner, see 33-2-8 NMSA 1978.

For escape by prisoners under inmate-release programs, see 33-2-46 NMSA 1978.

Escape constitutes a continuing offense so that an escapee continues to commit the offense as long as he voluntarily remains at large. State v. Martinez, 1989-NMCA-047, 109 N.M. 34, 781 P.2d 306, cert. denied, 108 N.M. 668, 777 P.2d 907.

Actual custody required. — In order to sustain a charge of escape under this section, a person who has been convicted and sentenced must first have undergone some moment of actual custody, either through an administrative booking or in-take processing with the department of corrections. Absent such custody, a person cannot be said to have committed escape from the penitentiary within the meaning of this section. State v. Pearson, 2000-NMCA-102, 129 N.M. 762, 13 P.3d 980.

Conviction not double jeopardy. — Assuming without deciding that some administrative sanctions had been levied against defendant for his escape from prison, conviction under this section did not constitute double jeopardy. State v. Budau, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209 (1974).

Application to honor farm constitutional. — Defendant's argument that application of this section to escapees from the prison honor farm constituted cruel and unusual punishment because of the difference in facilities at the farm compared with the state penitentiary was without merit. State v. Budau, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209 (1974).

Honor farm part of penitentiary. — Prison honor farm was an integral part and parcel of the state penitentiary, and escape therefrom was an escape from the state penitentiary. State v. Budau, 1973-NMCA-151, 86 N.M. 21, 518 P.2d 1225, cert. denied, 86 N.M. 5, 518 P.2d 1209 (1974); State v. Peters, 1961-NMSC-160, 69 N.M. 302, 366 P.2d 148 (1961), cert. denied, 369 U.S. 831, 82 S. Ct. 849, 7 L. Ed. 2d 796 (1962).

Escapee does not forfeit right of appeal. — A person convicted of a crime does not forfeit his right to appeal simply because he has escaped from confinement. He still has a right to have his conviction reversed if he was erroneously convicted or if his constitutional rights were violated. Mascarenas v. State, 1980-NMSC-074, 94 N.M. 506, 612 P.2d 1317.

Regardless of the outcome of the appeal, the escapee may still be criminally liable for the act of escape; therefore, there is no need to use the forfeiture of the constitutional right of appeal as a further sanction. Mascarenas v. State, 1980-NMSC-074, 94 N.M. 506, 612 P.2d 1317.

Collateral attack of legality of commitment. — To collaterally attack the lawfulness of his commitment to the penitentiary prior to his escape, a defendant must come forward with substantive evidence to show that at the time of his escape he was illegally incarcerated. State v. Ellis, 1980-NMCA-187, 95 N.M. 427, 622 P.2d 1047, cert. denied, 95 N.M. 426, 622 P.2d 1046.

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 this section, rather than escape from jail under 30-22-8 NMSA 1978. State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545.

Law reviews. — For comment on State v. Vaughn, 74 N.M. 365, 393 P.2d 711 (1964), and Sanders v. Cox, 74 N.M. 524, 395 P.2d 353 (1964), see 4 Nat. Resources J. 616 (1964).

For article, "Approaching Statutory Interpretation in New Mexico," see 8 Nat. Resources J. 689 (1968).

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.

What constitutes "custody" under 18 USCS § 751(a) defining offense of escape from custody, 114 A.L.R. Fed. 581.

30A C.J.S. Escape §§ 16 to 18.