People v. Hinze, Cr. 2174

• Decision Date: 14 April 1950
• Docket Number: Cr. 2174
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. HINZE.

Page 35

217 P.2d 35

97 Cal.App.2d 1

PEOPLE v. HINZE.

Cr. 2174.

District Court of Appeal, Third District, California.

April 14, 1950.

Donald R. Colvin, Redding, for appellant.

Fred N. Howser, Attorney General, By: Gail A. Strader, Deputy, for respondent.

VAN DYKE, Justice.

This is an appeal from a judgment following conviction of the crime of escape as denounced by Section 4532 of the Penal Code. On April 26, 1948, there was filed in the Justice's Court of Township No. 6, County of Shasta, a complaint charging defendant with driving a vehicle in violation of the provisions of Section 510 of the Vehicle Code and warrant thereupon was issued. On the same day after his arrest he pleaded guilty of the offense charged. Time for judgment was waived and the court rendered the following judgment: 'Wherefore it is hereby ordered as punishment for the offense charged, that you, Jack D. Hinze, pay a fine of $250.00 or be imprisoned in the county jail to satisfy the same in the proportion of one day for every 2 dollars thereof.'

Under the same date an abstract of the foregoing proceedings was certified by the Justice of the Peace, and the Sheriff of Shasta County was directed to hold and imprison the defendant until the judgment should have been satisfied as therein prescribed. Nothing further appears concerning the imprisonment of the defendant until on August 12, 1948, when, as shown by the records of the sheriff kept at the county jail, defendant was placed in that jail. On August 21st he was made a trusty and permitted to go outside the jail for the purpose of performing work. He did not return, but disappeared and was not found, though search was made. He next appeared at Ukiah, California, where he turned himself in to the Sheriff of Mendocino County. He was returned to Shasta County and informed against as having violated the aforesaid section of the Penal Code. He was tried before a jury, which found him guilty of the offense charged, and from the judgment following he takes this appeal.

It is first contended by appellant that, because the Justice of the Peace sentenced him to pay a fine of $250 or be imprisoned in the county jail one day for each $2 of fine not paid, the People, in order to convict him, must have proved the fine had not been paid. This contention cannot be sustained. The abstract of proceedings and commitment above referred to were received in evidence and therefrom it appears that the appellant had been regularly complained against, arrested upon warrant, informed of his rights, arraigned and his plea of guilty entered. It further appeared that he was regularly sentenced and committed to the county jail in the custody of the sheriff until the judgment should have been satisfied. 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.

The judgment substantially followed the provisions of Section 1446 of the Penal Code which provides that a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied. Hence the judgment rendered here would result in his being held in the county jail for the term of 125 days unless that term was shortened by whole or partial payment of the fine. 'When a judgment is entered imposing a fine, or ordering the defendant to be imprisoned until the fine is paid, he must be held in custody during the times specified in the judgment, unless the fine is sooner paid.' Penal Code, Sec. 1456. Upon expiration of the term of sentence, however brought about, it would be the duty of the sheriff to immediately free his prisoner. It is presumed that the sheriff regularly performed his official duty. C.C.P., Sec. 1963, subd. 15; People v. Serrano, 123 Cal.App. 339, 11 P.2d 81; People v. Crider, 76 Cal.App. 101, 244 P. 113; People v. Siemsen, 153 Cal. 387, 390, 95 P. 863; National City v. Dunlop, 86 Cal.App.2d 380, 384, 194 P.2d 788. The application of this presumption sufficiently supplies proof that nothing had happened to shorten the term of imprisonment originally imposed.

It is next contended that the trial court erred in refusing to permit appellant at his trial in this case to prove that he had not, during the proceedings in the Justice's Court, been informed of his right to counsel, it being claimed that if the constitutional rights of the appellant in that proceeding had been denied him, his conviction, sentence and judgment would be thus shown to have been void and that his imprisonment at the time of his escape would have been illegal to the extent that he would have been justified in freeing himself therefrom and would not have been guilty of the crime of escape in so doing. These contentions likewise cannot be sustained. Touching these matters, the following occurred at the trial herein. After the prosecution had closed its case the defendant was called to the stand as a witness in his own behalf. He testified that he recalled his arrest in March, 1948, while driving a car near Fall River Mills. Thereupon a question intended as a preliminary to proof of violation of his constitutional rights was objected to and the court stated, in effect, that it did not consider such testimony would be material and would sustain the objection. Counsel for defendant thereupon made an offer to prove that, if permitted, the defendant would testify he was taken before the Justice of the Peace the day after he was arrested; that the Justice then told him, 'I see nothing between you and liberty but 125 days in jail'; that appellant was not then represented by an attorney; that he was never informed by Judge Callison or anyone else that he had any right to be represented by counsel; 'that until he discussed the matter with me [defense attorney Colvin] after I had been appointed as his counsel by this Court he did not know that a defendant in a Justice Court charged with a misdemeanor was entitled to representation by counsel'; that had he been so informed he would have insisted that an attorney hired by himself be present; that he would have asked to have an opportunity to obtain counsel. The court thereupon ruled that the proffered testimony would be inadmissible and after a short cross-examination the defense rested. In support of his present contention appellant relies upon such cases as People v. Ah Teung, 92 Cal. 421, 28 P. 577, 15 L.R.A. 190; People v. Clark, 69 Cal.App. 520, 231 P. 590; People v. Avilez, 86 Cal.App.2d 289, 194 P.2d 829; People v. Chesser, 29 Cal.2d 815, 178 P.2d 761; In re McCoy, 32 Cal.2d 73, 194 P.2d 531, and In re Jingles, 27 Cal.2d 496, 165 P.2d 12.

We shall treat the offer of proof made as fully adequate to present the points relied upon. No objection was made to its sufficiency and it appears from the transcript that the trial court was fully advised of the theory upon which it was claimed that the proffered testimony was admissible. It must be said that if such evidence had been received and would have, taken together with other evidence in the record, supported a verdict in appellant's favor, then it ought to have been received. It must be said, also, that the appellate courts of this State and of the United States have recently given considerable attention to the question of the effect upon criminal trials of any failure of trial courts to preserve and safeguard the constitutional rights of an accused to be represented by counsel in all such proceedings in all courts.

Relative to the proof necessary to convict on a charge of escape, our Supreme Court in People v. Ah Teung, supra, 92 Cal. at page 425, 28 P. at page 578, 15 L.R.A. 190, declared: '* * * An escape is classed as a crime against public justice; and the law, in declaring it to be an offense, proceeds upon the theory that the citizen should yield obedience to the law; that, when one has been by its authority or command confined in a prison, it is his duty to submit to such confinement until delivered by due course of law, no matter whether he was committed to await a future trial or as a punishment after judgment of conviction, or for any other purpose authorized by law. But when the imprisonment is unlawful, and is itself a crime, the reason which makes flight from prison an offense does not exist. In such a case the right to liberty is absolute, and he who regains it is not guilty of the technical offense of escape. * * * there can be no escape, in the sense of the law, unless there was a lawful custody.' The foregoing declaration was quoted and followed in People v. Clark, supra.

These decisions, in line with many others that might be referred to, undoubtedly declare the rule applicable to a case of this nature. But it does not follow that a person who has been wrongfully imprisonment may always free himself therefrom with impunity. On the contrary, it is often the case that his imprisonment, though wrongful, proceeds from such sources that it is incumbent upon him to apply to a court of proper jurisdiction to declare and adjudge the wrongfulness of his imprisonment and is a proper case have it terminated by the court's order. In such a situation, if the person so wrongfully being imprisoned undertakes to act to free himself by leaving that imprisonment he is guilty of the offense of escape. Such we hold was the situation in which the appellant was placed when on August 21st he escaped from the custody in which he was being held, assuming, for the purpose of this discussion, that by virtue of the things he sought to prove that imprisonment had been arrived at unlawfully. Thus it was said in Aderhold v. Soileau, 5 Cir., 67 F.2d 259, at 260: '* * * A prisoner in a penal institution whose sentence is irregular or viodable may not for that reason, and before some court has so adjudged, defy his guards and run away. A difference of opinion might cause a death. Such a doctrine would set discipline at naught.'

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