— I dissent. Section 4532 of the Penal Code plainly defines the class of persons to whom the section applies as "Every prisoner charged with or convicted of a felony.” (Italics ours.) The qualifying phrase is unequivocal. Whether or not it is wise is a concern of the Legislature and not of courts. The courts cannot lift qualifying phrases from legislation without usurping legislative functions and the usurpation is particularly flagrant when the phrase has been added by amendment. As first enacted in 1872, section 107, the forerunner of section 4532, simply provided: "Every prisoner confined in any other prison than the state prison, who escapes or attempts to escape therefrom, is guilty of a misdemeanor.” In 1923 the Legislature amended the section, making the crime a felony and amplifying the scope of the section by setting forth additional circumstances under which escapes might be made or attempted. At the same time the word "prisoner” was qualified by the phrase "charged with or convicted of a felony.” Sections 105 and 106 covered the escape of felons who were imprisoned or being conveyed to or from prison. Section 107 was intended to cover escape under other circumstances, including *131escape from the lawful custody of any officer, or from a county jail pending trial after indictment or preliminary examination or after conviction and final judgment preceding removal to the state prison. As a result there was no longer any provision for the punishment of misdemeanants who escaped or attempted to escape. The legislative history of the bill amending section 107 set forth in the opinion in In re Hadnes, 195 Cal. 605, 608, 614-616 [234 P. 883], indicates that the Legislature deliberately excluded misdemeanants. It may well be that the Legislature was unwilling to bring misdemeanants within the scope of an amendment converting a misdemeanor to the more serious crime of felony. There is no way of determining with certainty whether the omission was deliberate or an oversight. In any event it is no ordinary omission, no mere absence of a phrase. Misdemeanants are excluded because felons are singled out in a qualifying phrase that states what it means in the simplest terms. The court cannot reject its obvious interpretation without denying all assurance that an act of the Legislature will be interpreted to mean what it says. It is for the Legislature and not the court, to confirm the omission if it was intended, or to correct it if it was not. (Code Civ. Proc., § 1858.) It is questionable whether the court should undertake to correct even an obvious oversight when the Legislature has it within its power to do so. Whatever delay attends legislative action is far outweighed by the uncertainty that must attend judicial correction of legislative lapses. There is always the possibility that the Legislature intended a provision to be read as it is written, however unwise it appears. The court’s refusal to read it as it is written makes it impossible for any one to rely upon the written word of the Legislature.
For the foregoing reasons In re Haines, supra, and In re Durand, 6 Cal.App.2d 69 [44 P.2d 367], should be overruled. Age has not hallowed their error. The qualifying phrase that they sought to conjure away still stands in plain, unmistakable words to mock the interpretation that would interpret away its existence. The failure of the Legislature to change the language of the statute thereafter, far from being an adoption of the court’s revision, represents merely a failure to undertake its own revision. The division in 1941 of section 107 of the Penal Code into sections 107 and 4532 was not a revision, and the problem raised by the qualifying phrase was carried over into the rearrangement. The amendment of 1933 simply prescribed the punishment previously *132incorporated by reference to section 108 of the Penal Code, while the 1935 amendment merely included “industrial farm or road camp” among the places from which it was a felony to escape or attempt to escape. There is no evidence that the Legislature ever had its attention directed to the construction in question. It is unrealistic to suppose that it can take note, much less deliberate the effect, of each judicial construction of statutory provisions, absorbed as it is with forging legislation for an endless number and variety of problems, under the constant pressure of considerations of urgency and expediency. The fiction that the failure of the Legislature to repudiate an erroneous construction amounts to an incorporation of that construction into the statute not only commits the Legislature to embrace something that it may not even be aware of, but bars the court from re-examining its own errors, consequences as unnecessary as they are serious. It is an iniquitous fiction indeed that reads into the Legislature’s silence an acceptance of a construction belied by the phrase whose insistent presence drowns out the interpretation that would be its requiem. (See Toucey v. New York Life Ins. Co., 314 U.S. 118, 139-140 [62 S.Ct. 139, 86 L.Ed. 100]; Helvering v. Hallock, 309 U.S. 106, 119-121 [60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368].)
Edmonds, J., concurred.
Petitioner’s application for a rehearing was denied November 27, 1942. Edmonds, J., and Traynor, J., voted for a rehearing.