State v. Ferguson

• Citation: 100 Ohio App. 191,135 N.E.2d 884
• Parties: , 60 O.O. 166 The STATE of Ohio, Appellant, v. FERGUSON, Appellee.
• Decision Date: 17 March 1955
• Court: Ohio Court of Appeals

Page 191

100 Ohio App. 191

135 N.E.2d 884, 60 O.O. 166

The STATE of Ohio, Appellant, v. FERGUSON, Appellee.

Court of Appeals of Ohio, Greene County.

March 17, 1955.

Syllabus by the Court.

1. Under the provisions of Section 2901.11, Revised Code, that 'no person shall escape * * * from any confinement or restraint imposed as a result of a criminal * * * proceeding,' the words, 'any confinement,' mean 'any legal confinement.'

2. Under Section 2937.02, Revised Code, the confinement in a county jail for a period of eight months of a person in default of bond, where such person was not accorded a preliminary examination and did not consent to a postponement thereof for a longer period than ten days, is illegal and void.

3. There is a constitutional right to trial by jury, under Sections 5 and 10, Article I of the Constitution, where imprisonment is a part of the penalty; and the failure to demand a jury does not constitute a waiver thereof.

George R. Smith, Pros. Atty., Xenia, for appellant.

Aultman, Shaw & Cox, Xenia, for appellee.

WISEMAN, Judge.

This is a proceeding instituted by the Prosecuting Attorney of Greene County under the provisions of Sections 2945.67 and 2945.68, Revised Code.

The defendant was indicted for escaping from the Greene County Jail, in which he was confined in violation of Section 2901.11, Revised Code. The trial in the Common Pleas Court of Greene County resulted in a directed verdict for the defendant on the ground that the confinement from which the defendant escaped was illegal. Thereupon, the defendant was released from custody.

This proceeding raises a novel and interesting question of law. Is a prisoner who escapes from confinement in a county jail guilty of violating Section 2901.11, Revised Code, when his confinement is illegal? We find no reported case in Ohio. Section 2901.11, Revised Code, was formerly Section 12408, General Code, and, by a recent amendment, effective October 2, 1953, made escape from a county jail a crime. A search of the case law does not disclose a judicial interpretation of this section which provides as follows:

'No person in the legal custody of guards or officers, shall hold a guard or officer as hostage or wound or inflict other bodily injury upon one of such guards or officers. No person shall escape, attempt to escape or aid, assist or induce others to escape from any confinement or restraint imposed as a result of a criminal, contempt, or probate proceeding, or render less secure any institution or facility wherein he is confined, or make, procure, secrete, or have in his possession an instrument, tool, or thing, with intent to kill, wound or inflict bodily injury, or resist the lawful authority of an officer or guard.' (Emphasis ours.)

The first question presented is one of interpretation. Is it a prerequisite that the confinement be a legal confinement before an escaped prisoner can be guilty of violating such section? We think so. The first words of the first sentence in that section are: 'No person in the legal custody,' etc. Unquestionably, here, by the express words of the statute, 'legal custody' is made a prerequisite to a charge of having held a guard as hostage, or of inflicting bodily injury, etc., upon such guard. The second sentence, which makes it an offense to escape from confinement, states that 'no person shall escape, * * * from any confinement * * * imposed as a result of a criminal * * * proceeding.' The section does not expressly limit its application to an escape from a legal confinement, but we think this is the only sound interpretation. It would be a strange situation if the Legislature intended to limit a prosecution under the first sentence in this section to a person in legal custody, and in the next sentence provide for the prosecution for an escape, whether the confinement was legal or illegal. It would be an anomaly in the law if the Legislature intended to make it an offense to escape from an illegal confinement. We conclude that under the provisions of this section 'any confinement' must be construed to mean 'any legal confinement.' In this connection we observe that the indictment in this case alleges that the defendant 'did unlawfully escape from lawful confinement in the Greene County Jail.'

The state contends that, even though the confinement from which the defendant escaped was illegal, he is required to use legal process by way of habeas corpus to secure his release. In our opinion, the defendant was not limited to habeas corpus; but if instituted, a writ of habeas corpus could not have been denied. However, the question is: The defendant having secured his liberty by means of escape, can he now be punished and reconfined under another charge for having escaped, when the confinement from which he escaped was illegal? In other words, can a legal charge for escaping be founded on an illegal confinement? We do not think so. In such a case the right to liberty is absolute. In 16 Ohio Jurisprudence, 350, Section 3, it is stated:

'The very foundation of the crime of escape is the lawful confinement of the prisoner, and therefore it is a general and well-established rule that when the imprisonment is unlawful, and is itself a crime against the law, 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. And where the imprisonment is without the authority of law there is no offense in assisting the prisoner to escape.'

No Ohio case is cited in the footnote supporting the text. Reference is made to 10 Ruling Case Law, 581, 585. In 10 Ruling Case Law, 579, Section 2, escape is defined as follow:

'The escape may be defined to be the voluntary departure of a person without force from the lawful custody of an officer of from any place where he is lawfully confined.' (Emphasis ours.)

On page 581, Section 5, the text is as follows:

'The very foundation of the crime of escape is the lawful confinement of the prisoner; and therefore it is a general and well-established rule, that when the imprisonment is unlawful, and is itself a crime against the law, 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. A person unlawfully deprived of his liberty is not obliged to submit to such violation of his rights merely because the person thus restraining him is an officer of the law, and this is true even though such officer may honestly believe that he is performing his legal duties. It cannot be maintained that the mere confinement within the walls of a prison in violation of the law of the state makes such imprisonment a lawful one, from which it is a crime to escape if opportunity offers.' (Emphasis ours.)

On page 582, Section 6, it is stated:

'It is difficult to lay down a general rule which will serve in every case to determine whether the detention of the prisoner is lawful, and therefore whether his escape is a crime. It has been suggested, however, that a fair test is to determine whether or not the prisoner could at the time of his escape have secured his release by habeas corpus.' (Emphasis ours.)

The statements made in Ruling Case Law have been carried into 19 American Jurisprudence, 359 et seq., Sections 2 and 10. A part of the text in Ruling Case Law has been taken from the opinion of the court in the case of People v. Ah Teung, 92 Cal. 421, 28 P. 577, 15 L.R.A. 190, where it was urged, as here, that the prisoner's only remedy was through habeas corpus. The court rejected this view and held that there can be no escape in a legal sense unless there was a lawful custody.

In Miers v. State, 34 Tex.Cr.R. 161, 29 S.W. 1074, the court held that a person illegally arrested, though he has acquiesced in the arrest, may use such force as is necessary to regain his liberty; and if it reasonably appears that the officer intends to shoot to prevent his escape, may shoot the officer in self-defense.

The court on page 189 of 34 Tex.Cr.R., on page 1077 of 29 S.W. states a factual situation in accord with the charge of the trial court which was rejected as unsound, as follows:

'A. is arrested by a private person without authority. A. did not resist the arrest. A. has no right to escape from such an arrest, and hence the person making the illegal arrest is vested with the authority of a full-fledged officer, armed with all proper authority, and A. must go with this trespasser wheresoever he desires, and can obtain relief by habeas corpus, we suppose, if his consent has not deprived him of this right. We defy the production of a single authority in support of this proposition. Such a doctrine would be sweet to the highway robber. He would select his time, arrest his man, take him to one side for the purpose of fleecing him, and the prisoner would have no right to regain his liberty, because he had yielded to the arrest without resistance; nor could any other persons intervene, for they would have no greater or other rights than the prisoner.'

In State v. Beebe, 13 Kan. 589, 19 Am.Rep. 93, the court held:

'Where a person charged with the commission of a criminal offense is at liberty on bail, and his sureties with his consent, but without any copy of the recognizance, deliver him to the sheriff, taking his receipt therefor, held, that the sheriff, without having any copy of the recognizance, cannot lawfully hold the accused in custody against his will; and therefore, that the accused in such a case may escape from the custody of the sheriff without committing a felony, and also that any other person may assist him to escape without committing a felony.'

In People v. Murphy, 1942, 263 App.Div. 1051, 33 N.Y.S.2d 963, affirmed without opinion in 288 N.Y. 613, 42 N.E.2d 612, it was held that a defendant who escapes from the county jail...