People v. Ah Teung

De Haven, J. The defendant was convicted and sentenced to the state prison for the term of five years for the crime of assisting one Lee Yick, confined in the county jail of Alameda County, to escape therefrom. From this judgment, and an order denying his motion for a new trial, the defendant has appealed to this court.

Upon the trial, the defendant requested the court to give the following instruction, which was refused: “ It is not unlawful for one who is restrained unlawfully, and without authority and process of law, to withdraw from his place of confinement and depart therefrom. Such [422]departure is not an escape, within the meaning of the law. And so, likewise, when one assists, without violence, a person who is confined without any authority of law, and without any process of law, to depart from his place of confinement.”

It appears from the evidence that Lee Yick, whom the defendant is accused of assisting to escape, was, with the consent of a deputy sheriff in charge thereof, placed in the Alameda County jail by a deputy United States marshal for the southern district of California, and that the only authority of said deputy marshal consisted of a “finding ” made by a United States circuit court commissioner for the southern district of California, at San Diego, which, after reciting that said Lee Yick was charged with having unlawfully come within the United States from a foreign place, and had been examined before him on that charge, proceeded to state, as his conclusion from the evidence, that “Lee Yick is a Chinese person and laborer; that he came within the United States on the first day of August, A. D. 1890, in the county of San Diego, state of California, from the republic of Mexico. Now, therefore, from the foregoing facts I find that the said Lee Yick was found unlawfully within the United States, and that he is not lawfully entitled to he in or remain in the United States.” No formal judgment was ever made or given upon this “ finding,” nor order or direction given by the commissioner or any court that the said Lee Yick be removed from the southern district of California to some other place in the United States for the purpose of returning him to the country whence he came, and that he be restrained of his liberty for that purpose.

1. It is provided by section 1601 of the Penal Code, that “the sheriff must receive, and keep in the county jail, any prisoner committed thereto by process or order issued under the authority of the United States, until he is discharged according to law.”