People v. Ganger

California Court of Appeal Apr 14, 1950 No. Crim. 2143Published

Before: Adams, Peek

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Holding. A defendant held under a commitment issued by a magistrate must seek release through legal process rather than escaping, and claims regarding the illegality of confinement cannot be raised for the first time on appeal.

Issues

Whether a defendant may justify an escape by claiming the underlying imprisonment was illegal due to a failure to file an information within 15 days.
Whether claims of illegal confinement not raised at trial may be considered for the first time on appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“if a defendant has reason to believe that his imprisonment is illegal he must apply for his release and not take it upon himself to terminate his incarceration by escaping.”

“a person confined by the law should be delivered by the law, and that no other means were justified.”

“the grounds which appellant urges for reversal of the judgment are being raised for the first time on appeal, and are therefore not entitled to consideration here.”

Opinion

97 Cal.App.2d 11 (1950) THE PEOPLE, Respondent,

WILLIS L. GANGER, Appellant.

Crim. No. 2143. California Court of Appeals. Third Dist.

Apr. 14, 1950. Floyd Merrill for Appellant.

Fred N. Howser, Attorney General, and Gail A. Strader, Deputy Attorney General, for Respondent.

ADAMS, P. J.

Appellant was convicted in Siskiyou County of escaping from the county jail on July 4, 1946, while confined therein under a commitment dated May 24, 1946, issued by a magistrate holding him to answer upon a charge of burglary. This appeal was taken from the judgment which followed conviction by a jury. No motion for a new trial was made.

The evidence shows that after defendant's escape he went [12] to Oregon, thence to Washington where he was retaken and returned to Siskiyou County.

Appellant urges, as ground for reversal of the judgment, that: (1) he was illegally confined in the Siskiyou County jail at the time of his escape; (2) that on his trial it was not shown that he had been given a hearing before a magistrate as provided by section 859 of the Penal Code; (3) that there was no showing that the committing magistrate had jurisdiction of the offense with which he was charged, to wit: burglary, or that he was vested with any authority as a committing magistrate; (4) that departure from an unlawful imprisonment or custody is not an escape within the meaning of the law; and (5) that there was no showing that any extradition proceedings were taken for the return of defendant to California from Washington.

The illegality of appellant's imprisonment at the time of his escape is urged upon the ground that he was committed to the custody of the sheriff on May 24, 1946, and his escape was not made until July 4, 1946, more than 15 days after the commitment, and that there was no showing made by the prosecution that within those 15 days any information had been filed in the superior court charging him with burglary; that, under section 809 of the Penal Code, it was mandatory that such information be so filed, and in the absence of such action his detention when he made his escape was illegal.

People v. Ganger

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Opinion

ADAMS, P. J.

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PEEK, J.

Concurrence — Peek

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