¶1The opinion of the court was delivered by
¶2The only question in this case for our consideration is, whether the offense defined in § 183 of the crimes act is a felony. That section reads:
¶3“ If any person, lawfully imprisoned or detained in any *59county jail or other place of imprisonment, or in the custody of any officer, upon any criminal charge, before conviction, for the violation of any penal statute, shall break such prison or custody and escape therefrom, he shall, upon conviction, be punished by confinement and hard labor for a term not exceeding two years, or in a county jail not less than six months.”
¶4Section 422 reads:
¶5“Every person who shall be convicted of having concealed any offender after the commission of any felony, or of having given to such offender any other aid, knowing that he has committed a felony, with the intent and in order that he may escape or avoid arrest, trial, conviction, or punishment, and no other, shall be deemed an accessory after the fact; and, upon conviction, shall be punished by confinement and hard labor not exceeding five years, or in the county jail not exceeding one year or less than six months, or by fine not less than $400, or by both a fine not less than $100 and imprisonment in a county jail not less than three months.”
¶6Upon the part of the petitioner, the contention is, that an offense which may be punished otherwise than by death and imprisonment in the penitentiary is a misdemeanor only, and not a felony. Section 4 of the criminal procedure reads: “A felony is an offense punishable by death or confinement and hard labor in the penitentiary.” Bishop, in his New Criminal Law, says that,
¶7“ In a considerable number of our states, statutes have defined felonies to be all offenses which are punishable either by death or imprisonment in the state prison. In minor particulars, these statutes differ. If, by the statutory terms, the court or jury is at liberty to inflict some milder punishment instead of imprisonment or death, the offense is still felony. It suffices that the heavier punishment may be imposed.” (Yol. 1, §§ 618, 619.)
¶8See, also, The State v. Smith, 32 Me. 369; Johnston v. The State, 7 Mo. 183; Ingram v. The State, 7 id. 293; People v. War, 20 Cal. 117; The State v. Mayberry, 48 Me. 218; The State v. Waller, 43 Ark. 381; People v. Lyon, 99 N. Y. 210.
¶9Within the statute, “the breaking of a jail” before con*60viction may be punished by confinement and hard labor in the penitentiary. Under the great weight of authority, any offender who may .be punished in this matter is guilty of a felony. To constitute that grade of offense, it is not necessary that it must be so punished; the maximum punishment to which the offender is punishable — that is, may be punished, or is liable — is the test by which the degree of the offense is determined.
¶10The case of Lamkin v. People, 94 Ill. 501, is in conflict with the general decisions of the courts. The other decisions referred to on the pari of the petitioner are not strictly applicable. As, in our opinion, the breaking of a jail before conviction is a felony under the statute, the application for the writ of habeas corpus will be denied.