Sweden v. State

• Citation: 172 P.2d 432,83 Okla.Crim. 1
• Decision Date: 28 August 1946
• Docket Number: A-10592.
• Parties: SWEDEN v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

172 P.2d 432

83 Okla.Crim. 1

SWEDEN v. STATE.

No. A-10592.

Court of Criminal Appeals of Oklahoma

August 28, 1946

Appeal from District Court, Pittsburg County; R. W. Higgins, Judge.

Carl Sweden was convicted of escape from the state penitentiary and he appeals.

Affirmed.

Syllabus by the Court.

1. A prisoner of the state penitentiary permitted to be at liberty as a trusty and not confined within the walls of the penitentiary may be prosecuted as an escaped prisoner where he leaves the place where he was assigned to work without permission, and is recaptured in another state. 21 O.S.1941 § 443.

2. Criminal Court of Appeals will take judicial notice that Oklahoma State Penitentiary is located at McAlester in Pittsburg County.

3. Venue may be proved by direct or circumstantial evidence.

4. An inmate of the state penitentiary who escapes while he is a trusty is properly charged in the District Court of Pittsburg County.

5. Proper manner to present question as to whether there was a material variance between the allegations of preliminary complaint and information was to present motion to quash the information before entering a plea on the merits.

6. Typographical error in body of complaint will not be deemed a material variance where question was not raised prior to time of trial.

William Jones, of McAlester, for plaintiff in error.

Mac Q Williamson, Atty. Gen., and Owen J. Watts, Asst. Atty. Gen for defendant in error.

JONES Presiding Judge.

The defendant, Carl Sweden, was charged in the District Court of Pittsburg County with escaping from the state penitentiary; a jury was waived, the defendant was tried, convicted and sentenced to serve the minimum term of two years in the state penitentiary and has appealed.

At the time of the arraignment of defendant, he was without counsel and the district court appointed his present counsel to represent him.

The record discloses that the hearing before the district judge was very informal. Much of the evidence consists in statements by counsel admitting certain facts in lieu of the state being required to introduce evidence to prove such facts. The contention of counsel for defendant during the trial can best be shown by the statement of his counsel as follows:

Mr. Jones: 'I agreed that he left the institution and was away, and was brought back, but his defense is that he was a trusty, and was not an escaped prisoner.'

The contention of counsel that the defendant could not be prosecuted as an escaped prisoner because he is a trusty cannot be sustained in view of the statute which provides:

'Any prisoner in either the State Penitentiary or State Reformatory sentenced thereto who escapes from such prison, either while confined therein, or while permitted to be at large as a trusty, is punishable by imprisonment in such prison for a term not less than two (2) years or more than seven (7) years, to commence from the expiration of the original term of his imprisonment.' 21 O.S.1941 § 443.

Counsel contends in their brief that no venue was proved. The only witness who was sworn to testify was the record clerk at the state penitentiary, and only very few questions were asked him. His evidence showed that the defendant was received at the Oklahoma State Penitentiary on April 2, 1939, and that while he was a trusty on August 3, 1941, he left the institution. When counsel for the state attempted to question the witness in connection with the alleged escape, the record discloses that counsel for defendant objected for the reason that the fact was not in the personal knowledge of the witness. A colloquy then occurred between counsel for defendant and the court during which counsel for defendant and the defendant himself made certain admissions concerning the alleged escape. The defendant interrupted to speak four or five times and stated that he was at a hay field when he left, and that he was found near Evansville, Indiana and brought back to the penitentiary. After certain admissions had been made by counsel for defendant and the defendant, the trial court stated:

'You state that you agree that he left the hay field as an inmate and was a trusty, and without permission of the officials, he left and was apprehended in Indiana and brought back.

'Mr. Jones: That would be it.'

No further proof was offered by either side after this statement by the court.

It is true that there is no direct testimony that the hay field where the defendant was working as a trusty at the time of his escape was in Pittsburg County, but, as we view the record, even though he was temporarily out of the penitentiary as a trusty working in Pittsburg County, or any other county, he was still constructively an inmate of the State Penitentiary at McAlester in Pittsburg County, and any escape while thus an inmate should be prosecuted in Pittsburg County.

This court has had occasion to learn something of the rules of conduct governing the prisoners at the state penitentiary. Those who are trusties are given a large amount of liberty and in many instances they are sent on errands to adjoining counties. Some of them have even delivered furniture made at the state penitentiary to the State Capitol in recent months. All of these trusties were inmates of the state penitentiary regardless of where they might be sent to work. They were constructively in the custody of the warden of ...