People v. Conson

TYLER, P. J.

Defendant, upon information, was charged by the district attorney of Marin County with the crime of felony, to wit, escaping from state prison.

He is a prisoner confined at San Quentin, California, having entered that institution from Los Angeles County on or about the fifteenth day of June, 1922, to serve sentences upon two convictions of felony. . Thereafter, on July 14, 1924, he was assigned to Prison Road Camp “A,” located near the town of Requa, in Del Norte County. On the twenty-second day of July following he was found missing from the camp and some nine days thereafter apprehended and returned to San Quentin.

Subsequently, on the twenty-third day of August, 1924, at a hearing before the board of prison directors he was found guilty of a charge of escaping from prison and all the credits to which he was entitled under the Penal Code, which he had already earned and which he would thereafter, earn, were declared forfeited.

On November 14, 1924, an information was filed in the superior court of Marin County charging defendant with a violation of sections 105 and 106 of the Penal Code, relating to escapes from state prison, and it was upon this information that the conviction here appealed from was had.

[511]

To this information defendant entered a general plea of not guilty. He also entered the plea of once in jeopardy, claiming that he had already been convicted of the offense charged by the judgment of the state board of prison directors rendered on the twenty-third day of August, 1924. Defendant was found guilty and this is an appeal from the judgment of conviction. The main question involved in the appeal is whether or not appellant was once in jeopardy for the offense charged.

The question arises by reason of the rejection by the trial court of certain evidence going to prove the action of the board of prison directors in forfeiting the credits of appellant and on the instruction of the court as to what constituted former jeopardy and the refusal to give certain instructions on this subject as requested by appellant. It is a welhsettled principle that a plea of once in jeopardy, former acquittal, or former conviction is not good unless the second prosecution is for the same offense, both in law and fact, as that for which the first prosecution was instituted.