People v. Armstrong

[747]

McMURRAY, J. pro tem.

*

Defendant was convicted of a misdemeanor and was sentenced to one year in the Ventura County Jail. While serving his sentence, defendant complained of pains which he thought were caused by sitting on cold seats, aggravating a bone disease he had been afflicted with since childhood. The doctor at the jail advised a hospital examination and thereafter defendant, with several other prisoners, was taken from the jail to the county hospital by a deputy sheriff. Upon arrival at the hospital some time before 9 in the morning, defendant’s temperature was 99.2 degrees, a circumstance which, it was testified, might indicate an acute infectious condition.

The deputy sheriff with the prisoners caused them to be seated in a hallway some three to five steps from a treatment room into which the deputy went, leaving the prisoners to await their calls for treatment. Defendant noticing that the deputy was out of sight saw an opportunity to leave, and did so.

He left the hospital by a side door, stole a county truck which he later abandoned to steal another ear, and after pursuit was recaptured by peace officers and returned to jail.

After information charging violation of section 4532 of the Penal Code (escape from custody) and also charging two counts of violation of section 10851 of the Vehicle Code (auto theft), the defendant was tried and convicted by a jury on all three counts, and, after application for probation was denied, was sentenced to the Adult Authority with sentences as to the first two counts to run consecutively and the sentence for the third count to run concurrently with the sentences of the first two. From this judgment of conviction the defendant appeals.

Appellant contends that the trial court invaded the province of the jury by instructing as follows: “The defendant is charged in Count I of the information with the crime of escape, a violation of section 4532 of the Penal Code, which, insofar as it applies in this case, provides that every person convicted of a misdemeanor, who is in the lawful custody of an officer and who escapes, is guilty of a felony.

“An escape is the unlawful departure of a prisoner from the limits of his custody.