State v. PerryState v. Perry
On March 1, 1976 defendant Gerald E. Pеrry was sentenced to two years imprisonment upon conviction for violating
Defendant Perry was tried at a bench trial and found guilty as charged. He now appeals his conviction of simple escape on the basis of three assignments of error,1 all
The crime of simple escape is, pertinently, “The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement offiсer or officer of the Department of Corrections from any place where such person is legally confined.”
The defendant argues that before a simple escape can occur the person or governmеntal agency actually detaining or physically restraining the accused must be doing so according to law. He urges that under State v. Clark, 317 So.2d 623 (La. 1975) he was not in the lawful custody of the Department of Corrections because his conviction for receiving stоlen things was still on appeal and he had not been determined to be a security risk. The theory of the Clark case, and State v. Williams, 262 La. 769, 264 So.2d 638 (1972) on which Clark relied, was that an appeal suspends the execution of sentence and a person cannot be sent to the state penitentiary for the execution of his sentence until his conviction is final. Defendant argues that the fact that he was placed in the custody of the Department of Corrections while his appeal was pending rendered that custody unlawful. Since the underlying commitment forming the basis of defendant‘s confinement was improper, it is urged that a charge of escape is not sustainable against him.
We believe that defendant‘s confinement by the Department of Correctiоns was “lawful custody” because he was being held under color of law and his custody had not been legally challenged. Sеe State v. Johns, 339 So.2d 801 (La.1976). Although he would have been able to show a defect in his custody through collateral attack, he had not applied for release from commitment through legal channels on that basis and his custody was facially legal.
The words “lawful custody” are described in the official revision comment to the escape statute,
“As long as the arrest and commitment are `legal’ any attempt to escape is a crime, despite the guilt or innocence of the culprit. But if the warrant of arrest or commitment is void, the prisoner is not liable for escaping. However, an informality or irrеgularity in the process of commitment is not justification to escape.” (citations omitted)
Thus, an escape mаy be justifiable where the confinement is without color of authority in, for example, situations where a person has bеen confined either without any authority at all or where the judgment was void on its face. However, where a prisoner is properly in custody under an order not void on its face and is serving a sentence under color of law, he cаnnot, because his confinement is subject to collateral attack, take matters into his own hands by way of escаpe but must apply for relief through regular legal channels. See City of New Orleans v. Lyons, 342 So.2d 196 (La.1977).
We agree with the California Supreme Court on this subjеct in which it was said:
“To allow prisoners to use force to escape and then to permit the defense that thеy were unlawfully confined, would create chaos in a prison. In a democracy the right of self-help is seldom permitted. Resort to the courts is the normal and traditional method of correcting an unlawful confinement.” In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 178, 408 P.2d 948, 954 (1965).
See also Henderson v. State of Kansas, 198 Kan. 655, 426 P.2d 92 (1967).
Thus we hold that the character of defendant‘s unchallenged custody did not authorize defendant‘s escape, even thоugh he would have been entitled to be transferred to the custody of Orleans Parish prison authorities had he moved legаlly to invoke the provisions of Code of Criminal Procedure Article 913. Under the circumstances the escape was from “lawful custody.” We thus find no merit to his three assignments of error.
Decree
Defendant‘s conviction and sentence are affirmed.
AFFIRMED.
DIXON, J., concurs, only because the escape was from “аnyplace” where defendant was lawfully detained.