In our opinion, the petitioner raises only two questions that merit discussion and determination. (1) Did the lower court commit error in denying petitioner’s plea of former jeopardy? (2) Does escape by a prisoner from the custody of a gang foreman employed by the North Carolina State Highway Commission while at work on the public roads, constitute “escape from the State prison system” within the meaning of G.S. 148-45 (a) ?
The pertinent part of G.S. 148-45(a) reads as follows:
“Any prisoner serving a sentence imposed upon conviction of a misdemeanor who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a misdemeanor and, upon conviction thereof, shall be punished by im*744prisonment for not less than three months nor more than one year. Any prisoner serving a sentence imposed upon conviction of a felony who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than six months nor more than two years. Any prisoner convicted of escaping or attempting to escape from the State prison system who at any time subsequent to such conviction escapes or attempts to escape therefrom shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than six months nor more than three years. * * *”
In S. v. Jordan, 247 N.C. 253, 100 S.E. 2d 497, in pointing out the defects in the bill of indictment involving escape, Bobbitt, J., speaking for the Court, said:
“We do not undertake on this appeal to specify the exact aver-ments prerequisite to a valid warrant or bill of indictment based on G.S. 148-45. Suffice to say, the bill of indictment on which defendant was tried is fatally defective. There is no averment of any kind, even in general terms that the alleged escape of January 9, 1957, occurred while defendant was serving a sentence imposed upon his conviction of any criminal offense. In order to charge the offense substantially in the language of G.S. 148-45, it would be necessary to allege that the escape or attempted escape occurred when defendant was serving a sentence imposed upon conviction of a misdemeanor or of a felony, irrespective of whether the presently alleged escape or attempted escape is alleged to be a first or a second offense. *
“It is noted that arrest of judgment on the ground that the bill of indictment is fatally defective does not bar further prosecution for a violation of G.S. 148-45, if the solicitor deems it advisable to proceed on a new bill. * *
The petitioner was charged in the original bill of indictment with having escaped on 1 June 1963 while serving a sentence imposed in January 1964, which sentence was imposed nearly eight months after the date the petitioner is alleged to have escaped.
We are not inadvertent to the provisions of G.S. 15-155 with respect to dates in a bill of indictment, and if the date of the alleged escape had been after the petitioner had been committed to prison and while he was serving a prison sentence pursuant to such commitment, although the alleged date of the escape was erroneous, the indictment would not be defective by reason of the insertion of such erroneous date. However, *745where the indictment on its face negatives any possibility of a showing that at the time of the alleged escape the petitioner was serving a sentence in prison, we think such indictment was fatally defective, that the action of the court below in ordering a mistrial was tantamount to quashing the bill of indictment, which the trial court had the right to do ex mero motu, and that the petitioner’s conviction on the second bill of indictment is valid and the plea of former jeopardy was properly overruled.
Unquestionably, G.S. 148-4 gives the Director of Prisons or his duly authorized agents or representatives the authority to designate the places of confinement within the State prison system where the sentences of prisoners shall be served. This statute expressly provides:
“* * Employees of departments, institutions, agencies, and political subdivisions of the State hiring prisoners to perform work outside prison confines may be designated as the authorized agents of the Director of Prisons for the purpose of maintaining control and custody of prisoners who may be placed under the supervision and control of such employees, including guarding and transferring such prisoners from place to place in the State as their duties might require, and apprehending and arresting escaped prisoners and returning them to prison. * * *”
Certainly, prisoners hired by the State Highway Commission to work on the highways of the State are within the prison system when the agents of the Highway Commission have been designated to receive and work such prisoners. Likewise, G.S. 148-6 provides in substance that convicts after their commitment to the Prison Department remain under the actual management, control and care of the department, and this applies to convicts employed on farms of the State, or elsewhere or otherwise.
It is also prescribed in G.S. 148-26 (e): * All contracts for the employment of prisoners shall provide that they shall be fed, clothed, quartered, guarded, and otherwise cared for by the Prison Department.”
We think the second question posed must be answered in the affirmative. We assume that the State established the fact that the party or parties having custody of the prisoners, including the defendant at the time he escaped, were agents of the Prison Department. The record before us does not contain the evidence adduced in the trial below, therefore, it will be presumed that the evidence was sufficient to support the verdict.
In the trial below, we find
No error.