People v. Whipple

HOUSER, J.

Defendant appeals from á judgment of conviction of the crime of escaping from an officer (sec. 107, Pen. Code) and from an order denying his motion for a new trial.

It is an admitted fact that defendant, while in the custody of the sheriff under lawful judgment of imprisonment for a misdemeanor, and while working in the prison camp of San Bernardino County, made his escape from the custody of the sheriff and from said prison camp. The sole defense offered is that the conditions existing in the camp, together with the brutal and inhumane treatment of the defendant, made his imprisonment intolerable and justified the escape.

The gist of the point made on appeal herein is that the trial court committed reversible error in instructing the jury that an excuse for the escape of defendant, founded upon any alleged insanitary conditions, or alleged harsh, brutal or inhumane treatment received by him at the hands of his custodian, would constitute no defense in the law for the commission of the offense.

In this state the common law is of no effect so far as the specification of what acts or conduct shall constitute a crime is concerned. (Sec. 6, Pen. Code; 7 Cal. Jur. 841.) In order that a public offense be committed, some statute, ordinance • or regulation prior in time to the commission of the act, must denounce it; likewise with excuses or justifications—if no statutory excuse or justification apply as to the commission of the particular offense, neither the common law nor the so-called “unwritten law” may legally supply it. As an illustration, section 187 of the Penal Code defines the crime of murder as the unlawful killing of a human being, with malice aforethought; section 195 lays down the law as to when or under what circumstances a homicide is excusable, and by sections 196, 197 and 198, of the same code, the conditions are specified which must exist before a homicide is justifiable. Although the “unwritten law” sometimes may be regarded by jurors as sufficient, and so accepted by them, in the law the principle is unknown and unrecognizable. The legal ex

[263]

cuse or legal justification for murder may be found only in the statute. Nor, ordinarily, at least, will the “law of necessity” prove sufficient as a legal excuse. For example, take the extreme case of a man burglarizing a bakery for the sole purpose of procuring bread for his starving babes. Even in such dire circumstances, so far as the particular offense is concerned, the law itself is powerless to accept the excuse. Nor yet will good faith, or the fact that the end accomplished is rightful, avail as a defense. The probation law (sec. 1203, Pen. Code) is broad and comprehensive in its scope. The relief of a defendant who, by reason of mitigating circumstances, seeks exemption from punishment for the commission of a crime by him must rest upon the liberal terms of that statute and the wise discretion of the trial court. In the case of