People v. Haskins

• Decision Date: 11 January 1960
• Docket Number: Cr. 3608
• Citation: 2 Cal.Rptr. 34,177 Cal.App.2d 84
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Pershing HASKINS, Defendant and Appellant.

Page 34

2 Cal.Rptr. 34

177 Cal.App.2d 84

PEOPLE of the State of California, Plaintiff and Respondent, v. Jack Pershing HASKINS, Defendant and Appellant.

Cr. 3608.

District Court of Appeal, First District, Division 2, California.

Jan. 11, 1960.

Richard Comerford, San Jose, for appellant.

Stanley Mosk, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Arlo E. Smith, Deputy Atty. Gen., for respondent.

DOOLING, Acting Presiding Justice.

Appellant was convicted by a jury of violating Penal Code, § 4532 (escape by a prisoner). Appellant was confined in the county jail of Santa Clara County as a condition of probation after conviction of a felony. By court order he was allowed to participate in the work furlough program pursuant to Penal Code, § 1208. Appellant left the jail farm on August 6, 1958 at 12:30 p. m. to report to his place of employment with instructions to return by 4 a. m. on August 7. After making application to another possible employer for more suitable work he telephoned a creditor to arrange payment of an indebtedness out of his earnings under the furlough program. He then went to his current place of employment and, after talking with other employees there, he went to a tavern-restaurant to eat. There he met a woman who invited him to her apartment. He telephoned to his place of employment and received permission to report for work late. After drinking with his woman companion in another tavern appellant bought a fifth of whiskey and went to the woman's apartment where he spent the night. He remained at large, drinking considerable liquor, until the evening of August 9, when between 4 and 6 p. m. he was found asleep on a park lawn by a police officer. The officer testified that appellant was not drunk although he appeared to be under the influence of alcohol. Appellant stated to the officer that he had 'taken off from' the jail farm. The officer arrested him and returned him to the county jail.

The court instructed the jury: 'Custody implies that a person detained on authority or kept in charge or control by another in some sort of restraint so that he is not free to come and go at will [sic]. There must be a showing of restraint or control over the Defendant's actions. It is sufficient, however, if a minimum restraint is exercised. Therefore, a prisoner, when given the benefits of the work furlough program, is deemed to be in lawful custody.'

Appellant complains of the last sentence of this instruction. Basically the question rests upon the proper construction of section 4532, Penal Code as it then read. So far as here pertinent it then provided (Pen.Code, § 4532(b)): 'Every prisoner charged with or convicted of a felony who is confined in any county * * * jail * * * or who is engaged on any county road or other county work or who is in the lawful custody of any officer or person, who escapes * * * from such county * * * jail * * * or from the custody of the officer or person in charge of him while engaged on or going to or returning from such county work or from the custody of any officer or person in whose lawful custody he is, is guilty of a felony * * *.'

Appellant points out that this section was last amended (before the incident upon which his conviction is based) in 1955 (Stats.1955, p. 1079) while section 1208 authorizing the work furlough program was not enacted until 1957 (Stats.1957, p. 2932). He argues that the Legislature could not have had the work furlough program in mind in 1955 when section 4532 was last amended (an obvious truism) and that the language of the section is not broad enough to encompass an escape by one who is at large under that program. Specifically he points to the provision of section 4532 'from the custody of the officer or person in charge of him while engaged on or going to or returning from such county work' and argues that this contemplates an actual physical custody, not a 'general' or constructive custody. Applying the rule 'expressio unius exclusio alterius' he further argues that the words 'or from the custody of any officer or person in whose lawful custody he is' must be given a like construction of actual physical custody and cannot be extended to one at large under the work furlough program who is not at the time in the actual physical custody of any officer or person.

The provisions of the Penal Code are not to be construed strictly but 'according to the fair import of their terms, with a view to effect its objects and to promote justice.' Pen.Code, § 4. More specifically the Supreme Court said of the escape provisions of that code in In re Haines, 195 Cal. 605, 621, 234, P. 883, 889: 'Even if the statute might be held to be susceptible of either construction, we are justified in the public interest in adopting the one favoring the punishment of all escaping prisoners. The courts will be astute to avoid a result contrary to sound sense and wise policy. As was declared in the textbook from which we have quoted: 'While the intention of the Legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words.' Lewis' Sutherland on Statutory Construction, supra.'

Guided by this admonition we are satisfied that the words in the statute 'or from the custody of any officer or person in whose lawful custody he is' are broad enough to include a prisoner committed by the superior court to the custody of the sheriff to be confined by him in the county jail, subject to the privilege under section 1208, Penal Code of being released for limited periods to engage in gainful employment. In contemplation of the law he is as much in the sheriff's custody when he leaves the jail for such purpose as when he is confined within its limits. (cf. the status of a paroled prisoner, People v. Denne, 141 Cal.App.2d 499, 507-510, 297 P.2d 451.) People v. Hinze, 97 Cal.App.2d 1, 217 P.2d 35, is much in point. There the prisoner was 'made a trusty and permitted to go outside the jail for the purpose of performing work. He did not return * * *.' The court said at page 3 of 97 Cal.App.2d at page 36 of 217 P.2d: 'It further appeared that he was regularly sentenced and committed to the county jail in the custody of the sheriff * * *. It was proved that he escaped from that custody within the period set by the sentence. This evidence was sufficient to prove the essentials of the crime charged.'

Appellant points to the fact that section 4532 was amended in 1959 to...