I am constrained to disagree with the conclusion reached by Mr. Justice FELLOWS.
The right of an accused to be tried in the jurisdiction where it is alleged he committed crime is ancient and valuable and should be maintained. But, in case of escape of a prisoner, in confinement under sentence to a State prison, is the mere place of the act to fix the venue or may the act itself, in its relation to the imprisonment, be declared by law to fix the venue? In order to be guilty of an escape, a prisoner need not break doors or walls; he escapes if he removes himself from the imposed restraint over his person and volition. In Clinton county the *Page 613 defendant was a prisoner of the State, in fact under confinement, and in law considered in the State prison. It is true that he departed from custody in Clinton county, but his escape was from imprisonment in the State prison, and such escape, and not the mere place of his departure, was the gist of the offense, and he cannot be heard to say that he has been deprived of a constitutional right by trial in Jackson county.
In Bradford v. Glenn, Judge, 188 Cal. 350 (205 P. 449), a prisoner, employed in road work, escaped in one county and the court held he could be tried in another county under a statute which provided that a charge of escape from a prison may be tried in any county in the State. It was there said:
"We are of the opinion that a person serving a sentence of imprisonment in a State prison is, in contemplation of law, a prisoner therein, as well when at work outside under the surveillance of prison guards as when confined within its walls, so that if he escapes when outside he escapes from a prison, within the meaning of section 787."
To like effect see People v. Vanderburg, 67 Cal.App. 217 (227 P. 621).
I think the statute valid, and the conviction should be affirmed.
NORTH, C.J., and FEAD, CLARK, McDONALD, POTTER, and SHARPE, JJ., concurred with WIEST, J. *Page 614