This is аn appeal by the defendant from a judgment of conviction of the crime of escaping from a state prisоn. The information charges in substance that while undergoing a sentence of twelve years’ imprisonment in the state prison at San Quentin, under and by virtue of a judgment of the superior court of the state of California in and for the county of San Diego, rendered July 28, 1922, said defendant did wilfully, unlawfully, and feloniously escape from said state prison.
*103 Section 105 of the Penal Code reads as follows: “Every prisoner confined in a state prison, for a term less than for life, who escapes thеrefrom, is punishable by imprisonment in a state prison for a term of not less than one year; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison.” Section 106 of the sаme code, which was later enacted, also provides: “Every prisoner committed to a state prison for a term less than for life, who escapes or attempts to escape while being conveyed to or from or while confined within such prison or while at work outside such prison under the surveillance of prison guards is guilty of a felony and on conviction thereof the term of imprisonment therefor shall commence from the time such convict would otherwise have been discharged from said prison.”
The undisputed evidence in the case shows that the defendant, after his cоmmitment to said state prison, was, at his request and in accordance with the rules of said prison, sent to a prison camp in Mariposa County maintained by the board of state prison directors under the surveillance of prison guards. The defendant arrived at said prison camp about February 14, 1924, and escaped therefrom on March 30, 1924. Subsequently, and on August 17, 1924, hе was taken into custody at Tucson, Arizona, and returned to said state prison.
It is first contended by the defendant that the informаtion does not state facts sufficient to constitute a public offense, in that it fails to charge that the defendant was “committed” to a state prison. From the statement of the substance of the information already made it is apрarent that the point is without merit. While the information fails to allege specifically that the defendant was “committеd” to said prison it does allege that while undergoing a sentence of twelve years’ imprisonment in the California state prison at San Quentin, California, under and by virtue of a judgment of the superior court of San Diego County, he did feloniously esсape from said state prison. We think this allegation sufficient to meet the requirement of the statute.
Defendant further contends that the evidence is insufficient to sustain a conviction for the reason that while he was charged with having esсaped from a state prison the evi
*104
dence shows that he escaped while at work outside such prison under the surveillance of the prison guards. In the case of
Bradford
v.
Glenn,
The information contained allegations to the effect that said judgment of conviction of the superior court of San Diego County had never been vacated, set aside, or reversed, but was still in full force and effect. The prosecution offered no proof in support of those allegations and defendant now contends that the evidence in that regard is insufficient to sustain a conviction. It is our opinion that those allegations were not essential to the charge and that therefore proof in support of them was unnecessary. A certified copy of the judgment of conviction was offered in еvidence, supplemented by proof that the defendant at the time he escaped was undergoing a sentence of imprisonment by virtue of said judgment, thereby establishing the fact that he was a prisoner in said state prison, at the time оf the escape, Ivhich is all that the statute requires.
Some mention, is also made by the defendant that there is evidenсe to the effect that when he departed from said prison camp his intention was to return to the prison to obtain medical treatment, but that on the way back to the prison he changed his mind and made his escape, and he clаims, therefore, it was not proved that he escaped from the prison camp. We think it would make no difference when he conceived the intent to escape, because, in contemplation of law, he was at all times a prisoner and under the surveillance of the prison guards.
As to the question of the difference in penalties fixed by thе two code sections above quoted, the judgment of the *105 court was that the defendant, having been duly convicted “of the crime of felony, to wit: escape from State Prison,” was ordered “punished by imprisonment in the State Prison of the State of California, at San Quentin, for the term of an indeterminate sentence as provided by law ...” If, hereafter, in fixing the tеrm of imprisonment under the indeterminate sentence law, the board of prison directors should impose an illegal term of imprisonment, the law affords the defendant ample remedy to correct any error which might thus be committed.
The judgment is affirmed.
Tyler, P. J., and Cashin, J., concurred.