Appellant was convicted by a jury of the crime of escape and his punishment assessed at three years in the Arkansas Department of Correction. Ark. Stat. Ann. § 41-3513 (Supp. 1973).
About five hours after a robbery occurred in Mississippi County, a Crittenden County police officer heard a police radio bulletin which gave a description of the robbers. At that time he had just arrested the appellant and two other individuals on a local law violation and had them in jail. Since they fit the broadcast description, the Mississippi County authorities were so notified. These officials promptly came to Crittenden County and interrogated appellant and his confederates during the day. One of them admitted participation in the robbery and implicated appellant. The Mississippi County officials placed appellant under arrest and asked the Crittenden County authorities to hold him pending the disposition of their local charges. The next day, however, (Monday) the Crittenden County authorities notified the Mississippi County officials that appellant would be released to them subject to a detainer. That same day the appellant and his codefendants were released to the Mississippi County officials and transported by them to their county jail where they were docketed with robbery and incarcerated. Four days later, the appellant and others escaped from the jail.
Appellant first contends for reversal of his escape conviction that the “trial court erred in holding that appellant was under lawful arrest at the time of his alleged escape.” Appellant’s argument, in effect, is that the evidence is insufficient to establish that he was under lawful arrest at the time of his alleged escape.
In defining the crime of escape, we recently said “ [Tjhe crime is committed by a prisoner under lawful arrest and restraint when he goes away from his place of lawful custody before he is released or delivered by due course of law.” Cassady v. State, 247 Ark. 690, 447 S.W. 2d 144 (1969). We later said:
The lawfulness of the imprisonment or custody from which the escape is made or attempted is the statutory essence of the criminal offense of escape or attempt to escape, and the lawfulness of the imprisonment or custody from which the escape is made or attempted must not only be alleged by the state in the-indictment or inforr mation, it must also be proved.
Harding & Hildebrandt v. State, 248 Ark. 1240, 455 S.W. 2d 695 (1970).
Appellant argues that a warrantless arrest by a sheriff outside his own county, as here, is of no more validity than that of a private citizen. Blevins v. State, 31 Ark.. 53 (1876). There we held that a sheriff could not validly serve a warrant outside his county. Therefore, appellant argues that since he was not taken into custody outside of the sheriff’s jurisdiction with a warrant, which is now permissible by Ark. Stat. Ann. § 43-411 (Repl. 1964), and not as a result of fresh pursuit, Ark. Stat. Ann. § 43-501 (Repl. 1964), his apprehension was unlawful in its inception. Consequently, he was not under lawful arrest and restraint at the time of his alleged escape from the Mississippi County jail.
We cannot agree. There existed substantial evidence from which a jury could find that the appellant was in lawful custody or detention at the time of his alleged escape. Admittedly, appellant was incarcerated and charged with robbery. There was evidence of a substantial nature that the Mississippi County authorities had reasonable grounds or probable cause for the arrest and detention of appellant on a robbery charge. In Stallings v. Splain, 253 U.S. 339 (1920), appellant contended that he was entitled to habeas corpus relief inasmuch as his original arrest and detention were illegal. There it was said “[W]here it appears that sufficient ground for detention exists a prisoner will not be discharged for defects in the original arrest or commitment.” See also Nishimura Ekiu v. United States, 142 U.S. 651 (1892). In the case at bar, as indicated, there is evidence from which the trier of the facts could find sufficient grounds that appellant was in lawful detention or custody at the time of his alleged escape. Certainly, the illegality of appellant’s arrest, as asserted here, would not affect or oust the trial court of jurisdiction to try appellant for the alleged robbery for which he was being held.
However, we agree with appellant’s contention that it was error for the court to hold, as a matter of law, that appellant’s arrest was lawful and, therefore, did not constitute a fact issue for the jury. This was in effect a directed verdict on a factual issue which is a requisite element of the alleged offense. As we said in Harding v. State, supra, the lawfulness of appellant’s imprisonment or custody constitutes an essential statutory element of the criminal offense of escape which must be alleged and proved. There we reiterated that “[T]he burden rests on the state to prove its allegations against the appellants, and does not lie on the appellants to disprove the allegations made by the state.”
Because of the error indicated, the judgment is reversed and the cause remanded.
Reversed and remanded.
Fogleman, Smith and Roy, JJ., concur.