¶1The indictment charges that the defendant, who had been duly sentenced to the penitentiary, “did attempt to escape before the expiration of his sentence from the county jail of Montgomery county, Ala.,” where the said J. M. Bradford was held in custody, under authority of law. The indictment evidently intended to make out a charge under § 4707 of the code of 1896, which relates to escapes and attempts to. escape from the penitentiary, hirer or guard, and not from a jail. The indictment may have been drawn under § 4707 of the code, and the trial court proceeded upon that idea in fixing the sentence of one year. The record does not disclose the demurrer, though the judgment entry recites action on a demurrer, but we cannot consider same.
¶2In order for the state to be entitled to a conviction under § 4707 of the code of 1896, the proof must show an escape or attempt to escape from the penitentiary, hirer or guard, which was not averred or proven in the. case at bar. The facts do not bring the case within the influence of § 4705, as the defendant was not “sentenced to imprisonment in the county jail or to hard labor for the county.” Besides, the court did not proceed under that section in fixing the punishment, which must not be for more than six months. As the facts do not bring this case within the operation of any of the other siatutes, it falls within the influence of § 4710, which relates to' “any. person who escapes from lawful custody.” The defend*153ant, notwithstanding he had been convicted and his sentence had been suspended pending an appeal, was a prisoner in lawful custody at the time of the. attempted escape. It is true said § 4710 relates to an escape, and the indictment in this case avers only an attempt to escape. But § 5306 permits a conviction for an attempt to commit the offense charged, and we see no reason why the state cannot indict for an attempt in lieu of the offense.
¶3There was no error in permitting the state to prove the confession of the defendant, as the proper predicate was established and there was sufficient proof of the corpus delicti. There was no error committed during the. trial, but the court erred in the sentence, and the judgment is therefore reversed as to the sentence, and the cause is remanded, in older that the defendant may be sentenced under § 4710 of the code of 1896. — Long v. State, 39 South. 357.
¶4Beversed and remanded.