( In re Jones, 61 Cal.2d 325 [ 38 Cal.Rptr. 509, 392 P.2d 269]; In re Raner, 59 Cal.2d 635 [ 30 Cal.Rptr. 814, 381 P.2d 638]; In re Singh, 234 Cal.App.2d 455 [ 44 Cal.Rptr. 474].) Petitioner argues that since the underlying commitment forming the basis of the confinement was improper, a charge of escape is not sustainable, citing People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190]; People v. Clark, 69 Cal.App. 520 [ 231 P. 590]. Those cases undoubtedly contain language that supports the position of petitioner, but later cases have explained that there are certain fundamental limitations on the application of that rule.
"There are cases holding that one unlawfully confined who escapes from such confinement, where the confinement is without color of authority, does not violate a statute making it unlawful to `escape' from prison. ( People v. Clark, 69 Cal.App. 520 [ 231 P. 590]; People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190].) These cases, however, deal with situations where a person has been confined either without any authority at all or where the judgment was void on its face.
den. 317 U.S. 606 [63 S.Ct. 62, 87 L.Ed. 492]); 21 C.J. 826; 30 C.J.S. 1142. Defendant relies upon People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190]; but that case was different in that there was no process by which the prisoner could be imprisoned, while here a commitment was issued by a committing magistrate. Furthermore, the Ah Teung opinion states, page 425, that when one has been confined in a prison by authority or command, it is his duty to submit until delivered by due course of law.
The court thereupon ruled that the proffered testimony would be inadmissible and after a short cross-examination the defense rested. In support of his present contention appellant relies upon such cases as People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190]; People v. Clark, 69 Cal.App. 520 [ 231 P. 590]; People v. Avilez, 86 Cal.App.2d 289 [ 194 P.2d 829]; People v. Chesser, 29 Cal.2d 815 [ 178 P.2d 761]; In re McCoy, 32 Cal.2d 73 [ 194 P.2d 531], and In re Jingles, 27 Cal.2d 496 [ 165 P.2d 12]. We shall treat the offer of proof made as fully adequate to present the points relied upon.
[8] There are cases holding that one unlawfully confined who escapes from such confinement, where the confinement is without color of authority, does not violate a statute making it unlawful to "escape" from prison. ( People v. Clark, 69 Cal.App. 520 [ 231 P. 590]; People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190].) These cases, however, deal with situations where a person has been confined either without any authority at all or where the judgment was void on its face.
( People v. Feldman, 171 Cal.App.2d 15, 23 [ 339 P.2d 888].) In the early case of People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190], it was held that a departure from an unlawful imprisonment or custody is not an escape. The rule of Ah Teung was followed in People v. Clark, 69 Cal.App. 520, 522 [ 231 P. 590].
" The leading escape cases are cited by appellant, People v. Ah Teung, 92 Cal. 421 [28 P. 577, 15 L.R.A. 190], and People v. Clark, 69 Cal.App. 520 [ 231 P. 590], but neither is in point. In the Ah Teung case the defendant was prosecuted for aiding in the escape of one Lee Yick from the county jail of Alameda county.
The imprisonment of Clark being illegal, was he guilty of the crime of escape when he peaceably left the place of his confinement? In the case of People v. Ah Teung, 92 Cal. 421-425 [15 L. R. A. 190, 28 P. 577, 578], the court said: "But when the imprisonment is unlawful, and is itself a crime, the reason which makes flight from prison an offense does not exist. In such a case the right to liberty is absolute, and he who regains it is not guilty of the technical offense of escape.
Defendant's knowledge that the prisoner was in legal custody may well have been inferred from all the facts and circumstances without direct evidence that he knew the fact. It was held in People v. Ah Teung, 92 Cal. 421, [15 L. R. A. 190, 28 P. 577], that a departure from an unlawful imprisonment or custody is not an escape, within the meaning of the law; and that one who, without violence, assists a person who is confined without authority or process of law to depart from his place of confinement is not guilty of the crime of assisting a prisoner to escape. [4] In the present case the prisoner was shown to have been legally committed to jail and was there being held in legal custody.
"Basically, the contention is that a prisoner commits no crime when he escapes unless his commitment is technically lawful in all respects. There are decisions that seem to have so held (e.g., People v. Ah Teung, 92 Cal. 421, 28 P. 577, 15 LRA 190; State v. Pishner, 73 W. Va. 744, 81 S.E. 1046, 52 LRA, NS, 369; State v. Ferguson, 100 Ohio App. 191, 135 N.E.2d 884), and indeed Housh v. People, 75 Ill. 487, looks in that direction, although the case is distinguishable on its facts. But a more realistic point of view has come to prevail.