The sheriff has authority, when the jail of the county is insufficient for the safekeeping of a prisoner, to convey the prisoner to the nearest sufficient jail in the state. T.C.A. § 41-4-121(a). This authority is subject to the securing of a court order. State v. Grey, 602 S.W.2d 259 (Tenn. Crim. App. 1980). In all cases, also, where it is shown to the committing magistrate, judge or court that the jail of the county in which the commitment should be made is insufficient for the safekeeping of the prisoner, the commitment shall be by mittimus or warrant stating the fact to the nearest sufficient county jail. T.C.A. § 41-4-121(b). In all cases where the jail in which a prisoner is confined becomes insufficient from any cause, any circuit or criminal judge, upon application of the sheriff and proof of the fact, may order the prisoner, by mittimus or warrant, to be removed to the nearest sufficient jail. T.C.A. § 41-4-121(c).
In Chisom v. State, 539 S.W.2d 831, 833 (Tenn. Crim. App. 1976), the Court of Criminal Appeals held that the trial judge acted within his authority in ordering the removal of a convicted rapist, for safekeeping reasons, from the county jail to the state penitentiary pending his appeal. However, in State v. Grey, 602 S.W.2d 259 (Tenn. Crim. App. 1980), the court held that the statute providing authority for a criminal judge to order a prisoner to be removed to the nearest sufficient jail, upon proof that jail in which prisoner was confined was insufficient, did not justify an order transferring the defendant, who was being detained in a local jail prior to trial, to the state penitentiary for safekeeping upon finding that defendant was an escape risk. The court found that the term "jail" was not intended to include the state penitentiary, and there was no showing that there was no nearby jail sufficient to contain defendant safely.