State v. HutchesonState v. Hutcheson
, The defendant, Prank Hutcheson, was convicted in •Marion county of the crime of escape from official ’detention, and sentenced to a year in the Oregon State Correctional Institution (OSCI). He appeals and contends only that venue of his offense was not in Marion county where OSCI is located, but rather in Clackamas county where his “unlawful departure” ① occurred. ■
Defendant was a prisoner, of OSCI serving a three-year sentence. On January 27, 1967, defendant was .enrolled in the work release program established pursuant to
The superintendent of OSCI, pursuant to ORS 421.Í70, recommended that defendant be enrolled in the *591 work release program by a memorandum reading in part as follows:
“Therefore, approval is requested for said inmate to be taken to the Clackamas County Jail in Oregon City and assigned to the Work Release Program for housing and such treatment as may be .indicated in accordance with ORS láá.450 and revised Board of Control procedures.”
The administrator of the Corrections Division, pursuant to
“Transfer of inmate for the purpose of housing and treatment under the Work Release Program is approved. Please return inmate to the Oregon State Correctional Institution should his status change regarding the Work Release Program. Custody shall remain with the Oregon State Correctional .Institution.”
As an enrollee in the work release program defendant was employed in Oregon City by a construction company and quartered in the Clackamas county jail. On February 24, 1967, defendant failed to return to his quarters at the end of his work day. He was at large until March 21, 1967, when he was apprehended and returned to OSCI.
We have held that “[v]enue is a material allegation of the. indictment by virtue of Art. I, § 11, of our constitution, which guarantees the defendant a trial ‘in the county in which the offense shall have been committed.’”
State v. Cooksey,
*592
We held recently, in
State v. Gilmore,
At the time of his escape defendant was in constructive rather than actual detention or custody. The controlling question is whether defendant was constructively in the custody of the superintendent of OSCI. The question is answered in a large measure, if not entirely, by
State v. Gilmore,
supra, and by the applicable statutes.
We think these and other provisions indicate a clear legislative intent to consider a work release enrollee in the constructive custody of the penal institution to which he was sentenced. His enrollment in the program is subject to the rules and regulations promulgated by the administrator of the Corrections Division pursuant to
When the act establishing the work release program is read in its entirety, it seems clear that the legislature intended that a work release enrollee would remain in the constructive custody of the penal institution to which he had been sentenced. The act specifically so states, and was given that construction by the administrator, who specifically provided that “[c]ustody shall remain with the Oregon State Correctional Institution.”
It is not clear whether
“The right of an accused to be tried in the jurisdiction where it is alleged he committed crime is ancient and valuable, and should be maintained. But, in ease of escape of a prisoner, in confinement under sentence to a state prison, is the mere place of the act to fix the venue, or may the act itself, in its relation to the imprisonment, be declared by law to fix the venue? In order to be guilty of an escape, a prisoner need not break doors or walls; he escapes, if he removes himself from the imposed restraint over his person and volition. In Clinton county the defendant was a prisoner of the state, in fact under confinement, and in law considered in the state prison. It is true that he departed from custody in Clinton county, but his escape was from imprisonment in the state prison, and such escape, and not the mere place of his departure, was the *594 gist of the offense, and he cannot be heard to say that he has been deprived of a constitutional right by trial in Jackson county.”
To the same effect, see
People v. Thomas,
We need not decide whether defendant could have been prosecuted in Clackamas county. We decide only that defendant was in constructive custody of OSCI located in Marion county and that he was properly tried in that county. Our conclusion is in accord with the holdings in other jurisdictions. In
Sweden v. State,
83 Okl Cr 1,
“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.”
See, also,
Dalton v. State,
In
Cutter v. Buchanan,
“This appellant was, at the time he walked away or escaped, constructively ‘confined’ in the reformatory located in Oldham County, and it was from that county ‘he was sent out under assignment.’ We think it is clear that the Oldham Circuit Court had jurisdiction to try the appellant for escape.”286 SW2d at 904 .
To the same effect, see
Clark v. Commonwealth,
The judgment is affirmed.
Notes
ORS .162.322:
“As used inORS 162.322 to 162.326, unless the context requires otherwise:
“(1) ‘Escape’ means unlawful departure, including failure to return to custody alter temporary leave granted for a specific purpose or limited period.”