(dissenting) — Defendant Fred LaCaze was confined to the Washington State Penitentiary at Walla Walla. In November of 1978, he was given a furlough from the penitentiary with certain conditions attached. Among these conditions was: no authorization to leave the county of furlough without permission. RCW 72.66.026. (Okanogan County was not the county of furlough and defendant had not received permission to go there.) Defendant was to *768report to the authorities in Spokane on November 15, 1978. By that time he was well away on the excursion described in the majority opinion. A willful failure to return from a furlough at the time specified in the parole order constitutes an escape from confinement which is in violation of criminal law. See RCW 72.66.060.
The majority confuses "legal authority", the requirement of the criminal law in RCW 9A.40.010(1), with "legal custody", a concept contained in domestic relations law. See RCW 26.09.180-.280. While the record does show that defendant had taken the children without the consent of their mother, the court has nothing before it whatever on the rights of custody, if any, defendant may have had to his children. Regardless of what "legal custody" defendant may have had over the children, it can hardly be asserted that he had "legal authority" to engage in the action which resulted in his conviction of three counts on second degree kidnapping.
The majority cites In re Sego, 82 Wn.2d 736, 513 P.2d 831 (1973), for the proposition that neither imprisonment nor criminal conduct (e.gescape) will per se mean loss of child custody. While accurate, it is irrelevant. That is not the issue in this case.
Although the defendant called no witnesses, it appears his theory of the case was that his sole interest in taking the children was to assume custody. His theory that he had "legal custody" of the children and was simply asserting that custody was not accepted by the jury. Apparently the jury felt the real intention of defendant was to engage in an incestuous romp through Washington, Oregon and California with the older sister of the three younger children. There is ample evidence in the record from which the jury could be persuaded of that fact beyond a reasonable doubt.
The heart of the matter is whether, given defendant's status and the restrictions placed upon him as a prisoner, he had the "legal authority" to take the children, regardless of what his intent may have been. The restriction of prisoners and the limitation of their rights and privileges does *769not violate the constitution. See Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 53 L. Ed. 2d 629, 97 S. Ct. 2532 (1977).
A prisoner generally retains all the rights of an ordinary citizen except those expressly or by necessary implication taken from him by law.
Hystad v. Rhay, 12 Wn. App. 872, 878 n.12, 533 P.2d 409 (1975).
It seems to me that since defendant's right and legal authority to go to Okanogan County or to leave the state was expressly taken from him, by necessary implication he also lost his legal authority to take his children. Even arguing, as defendant does, that he simply intended to assert his "right of custody", the fact is the jury refused to believe him. Beyond that, even if he may have had a right to "legal custody", he had no legal authority to assert that right as a violator of his furlough nor any legal authority to take his children.
The trial court should be affirmed. I dissent.