People v. Hadley

ADAMS, P. J.

In an information filed in Sacramento County on November 26, 1947, appellant was charged with a violation of section 4531 of the Penal Code, in that on June 20, 1943, while a prisoner committed to the state prison at Folsom for a term less than life, and while at work outside the prison under the surveillance of prison guards, he escaped therefrom; and to toll the statute of limitations it was further alleged that defendant was absent from the state from July 7,1943, to April 29,1947.

On this appeal from judgment after conviction by a jury, appellant contends that the place from which he made Ms escape was not, at that time, such a place as rendered Ms escape therefrom a crime within the provisions of section 4531 of the Penal Code, wMch then provided:

“Every prisoner committed to a State prison for a term less than for life, who escapes . . . while confined witMn such prison or while at work outside such prison under surveillance of prison guards is punishable by imprisonment in a State prison for a term of not less than one year. . . .”

That section was amended thereafter in 1943, so that it now enumerates places such as road camps, prison forestry camps, etc., escape from which constitutes a violation of the section; and appellant argues that it must be assumed that prior to the amendment escape from the prison forest camp in Plumas County, where he was at work when he escaped,

[736]

did not constitute a violation of the statute as it read prior to its amendment.

The evidence shows that on June 20, 1943, said camp was in charge of Henry Surritt, a correctional officer of Folsom Prison; that appellant left the camp with the permission of Surritt, to go fishing; that the camp, consisting of from 10 to 20 tents with no walls or bars around it, was on government ground, and had about 50 inmates from Folsom. There was one other prison guard at the camp, but no guard was detailed to go with appellant on his proposed fishing trip. The men in the camp were working for the U. S. Forest Service, taking out gooseberry bushes, and were being paid for their services. Appellant asserts that the kind of surveillance these prisoners had was a technical one, though the guards were responsible for them; that there was a roll call three times a day, but no physical control of the men; and that during the daytime, while working in the forests, they were not guarded by anyone. He therefore argues that there is a fatal variance between the allegations of the information and the proof.