(dissenting).
The bill of information charges that Robert C. Coney “committed the offense of simple escape as defined in RS. 14:110.2”, in that “the said Robert C. Coney zvhile imprisoned at the Louisiana State Penitentiary did intentionally depart, under circumstances wherein human life was not endangered from the lawful custody of an officer, official or employee of the Louisiana State Penitentiary and from a place where he was lawfully detained by said Officer, employee or official”. (Emphasis here and elsewhere is mine.)
R.S. 14:110, which defines the offense of simple escape and prescribes penalties, was amended and reenacted by the 1968 Legislature, Act No. 189, in order to include within the definition of simple escape the failure of a criminal serving a sentence to report to or return from work under an employment program. The old penalties were retained, so that those having been sentenced to Louisiana State Penitentiary who escaped would receive sentences of not less than two nor more than five years and those not sentenced to the penitentiary who escaped would be imprisoned for not more than one year.
At the same session (1968), in response to the decision in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, Act No. 647, Section 1, amended and reenacted numerous sections of Title 14 of the Revised Statutes of Louisiana, including Section 110. While the Legislature intended by Act No. 647 only to reduce the penalty for simple escape before sentence from one year to $500.00 and/or six months, the legislators were apparently not cognizant that Act No. 189 had been passed which included in the definition of simple escape the failure to report to or return from work. So for all practical purposes R.S. 14:110 (although appearing in two forms) read as follows after the 1968 session:
Ҥ 110. Simple escape
“Simple escape is:
“(1) The intentional departure of a person, ziuhile imprisoned, whether before or after sentence, under circumstances wherein human life is not endangered, from lawful custody of any officer or from any place where he is lawfully detained by any. officer; or
“(2) The failure of a criminal serving a sentence and participating in a work release program althorized by law to report to or return from his planned employment or other activity under said program.
“Whoever having been sentenced to the Louisiana state penitentiary, commits the crime of simple escape, shall be imprisoned at hard labor for not less than two years and not more than five years, provided that *385such sentence shall not run concurrently with any other sentence.
“Whoever not having been sentenced to the Louisiana state penitentiary, commits the crime of simple escape, shall be fined not more than five hundred dollars, or imprisoned for not more than six months or both; provided that such sentence shall not run concurrently with any other sentence.”
Then, Act No. 174, Section 1, of 1969 amended Title 14 by adding Section 109.1 which defined aggravated escape from the Louisiana State Penitentiary and fixed punishment at from 10 to 20 years, and by adding Section 110.2 which defined simple escape from the Louisiana State Penitentiary and fixed the penalty for that offense at not less than five nor more than ten years. R.S. 14:110.2 provided:
Ҥ 110.2 Simple escape from Louisiana State Penitentiary
“Notwithstanding the provisions of any other law to the contrary, including the provisions of R.S. 14:110, simple escape from the Louisiana State Penitentiary is the intentional departure of a person while imprisoned at said penitentiary, and under circumstances wherein human life is not endangered, from the custody of any official, officer or employee of said penitentiary or any other law enforcement officer of the State of Louisiana or a political subdivision thereof or from any place where such person is lawfully detained.
“Whoever commits the crime of simple escape from the Louisiana State Penitentiary shall be imprisoned at hard labor for not less than five years nor more than ten years, provided that such sentence shall not run concurrently with any other sentence.”
In 1970 Act No. 290 was enacted, providing :
‘‘Section 1. Section 110 of Title 14 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted to read as follows:
Ҥ 110. Simple escape
“Simple escape is
“(1) The intentional departure of a person, while imprisoned, whether before or after sentence, under circumstances wherein human life is not endangered, from lawful custody of any officer or from any place where he is lawfully detained by any officer; or
“(2) The intentional failure or refusal of any person serving a sentence and participating in a work release program authorized by law to report to or return from his planned employment or other activity under said program.
“Whoever not having been sentenced to the Louisiana State Penitentiary, commits the crime of simple escape shall be imprisoned at hard labor for not less than tivo years and not more than five years; provided that such sentence shall not run concurrently with any other sentence.
*387“Whoever not having been sentenced to the Louisiana State Penitentiary, commits the crime of simple escape shall be fined not more than five hundred dollars, or imprisoned for not more than six months, or both; provided that such sentence shall not run concurrently with any other sentence.
“Section 2. This act shall govern the penalty in all prosecutions for simple escape, regardless of when the offense was committed; provided, however, that the definition of simple escape shall be determined by the law in effect at the time the offense was committed.
“ * * * ” (Section 3 is the severability clause and Section 4 the repealing clause.)
The question presented for determination is the effect of the enactment of Act No. 290 of 1970 upon R.S. 14:110.2, enacted by the 1969 Legislature.
The first section of Act No. 290 of 1970 amends and reenacts R.S. 14:110. The second section, separate and apart from reenacting R.S. 14:110, states expressly: “This act shall govern the penalty in jdl prosecutions for simple escape * * Since Section 2 is so explicit and Section 1 defines simple escape to be the “intentional departure of a person, while imprisoned” from “any officer or from any place”, I am of the opinion that R.S. 14:110.2 was not only denuded of its penalty provision but was actually repealed.
I do not believe that simple escape from the Louisiana State Penitentiary as defined by R.S. 14:110.2 was intended to be a separate crime but rather to be a grade of the offense of “simple escape”. But even when it is considered as a grade of that offense, it is difficult to rationalize the special classification adopted by the Legislature in 1969. Why should those who escape from isolated Angola and the other branches of the Louisiana State Penitentiary in remote and rural areas be more heavily penalized than those who escape, after sentence to that institution but before incarceration there, in heavily populated urban areas throughout the state ? Moreover, why should the penalty for this grade have been so drastically increased'— two and one-half times the minimum and two times the maximum of the penalty provided in another statute which included and still includes the identical offense ? I realize, of course, that a determination of reasonableness in regard to legislative enactments ordinarily becomes a function of the court only under a claim of unconstitutionality which is not urged here. However, we are here faced with a conflict in penalties under two statutes for the crime of simple escape, which is by definition an offense not endangering human life. A determination of how severe the punishment is under R.S. 14:110.2 may be made by a -reading of the Criminal Code and a comparison with the penalties under of*389fenses pertaining to the person where human life is endangered or taken.*
Here we are to ascertain the prevailing legislative intent by a construction of two statutes. One construction, that of the majority, will allow imposition of what appears to me unequal, unreasonable, and unusually severe punishment. I would construe the legislation so that a less severe and a uniform penalty would be imposed. I have concluded by a simple reading of the provisions of amended and reenacted R.S. 14:110 that R.S. 14:110.2 is repealed, and that R.S. 14:110 prevails as the only simple escape statute in Louisiana. Bolstering this conclusion is my determination that the imposition of the less severe penalty and a uniform penalty for simple escape is a reasonable and just intendment of the Legislature. If there is ambiguity in the statutes or doubt as to proper construction, an examination for reasonableness and justice is a permitted technique for determining legislative intent.
Just as the Legislature has a right to define grades of an offense and to impose increasingly severe penalties according to grade, it has the right to declassify. I am persuaded that under the latest legislative enactment there is only one offense, simple escape, with the graded penalties for before and after sentence; that this act of 1970 included within its scope both R.S. 14:110 as amended in 1968 and R.S. 14:-110.2 as enacted in 1969, and that R.S. 14:-110.2 was thereby repealed. Accordingly we should quash the bill of information drawn under this provision and allow the defendant to be prosecuted under R.S. 14:110. I respectfully dissent.
See simple battery (R.S. 14:35) and aggravated assault (R.S. 14:37), not more than six months; aggravated battery (R.S. 14:34), not more than ten years; negligent homicide (R.S. 14:32), not more than five years; nianslaughter (R.S. 14 :31), not more than 21 years.