(Dissenting).
It is undisputed that defendant was not present at the time of the breakout from the penitentiary. It is also uncontested that his first contact with the escapees was three weeks after the escape from custody had been effectuated. The state does not claim that defendant in any way planned, assisted or incited the initial departure from custody. By holding that escape is a continuing offense, the majority has impermissibly extended the language of the statute defining the crime of assisting escape to include the conduct of defendant. Penal statutes must be strictly construed, and the definition of a crime is not to be broadened. State v. Collins, 80 N.M. 499, 458 P.2d 225 (1969); State v. Allen, 77 N.M. 433, 423 P.2d 867 (1967).
Assisting escape is: “intentionally aiding any person confined or held in lawful custody or confinement to escape.” NMSA 1978, § 30-22-11 (Repl.Pamp.1984) (emphasis added). “Lawful custody or confinement” is “the holding of any person pursuant to lawful authority, including, * * * actual or constructive custody of prisoners temporarily outside a penal institution * * *” NMSA 1978, § 30-1-12(H) (Repl.Pamp.1984). The storage shed is not a place of lawful custody or confinement and the escaped prisoners were not in the “constructive custody” of law enforcement officials at the time defendant picked up the inmates and drove them to Albuquerque. See State v. Trujillo, 106 N.M. 616, 747 P.2d 262 (Ct.App.1987). Thus, although defendant’s actions clearly fell outside the scope of the statute, the majority nonetheless brings him within the statute by contending that the escapees were still in the process of escaping. Penal statutes should not be subjected to strained or unnatural constructions in order to bring them within conduct not legislated against. State v. Garcia, 98 N.M. 585, 651 P.2d 120 (Ct.App.1982).
The majority reasons that since escape is a continuing offense, any person giving assistance to an escapee at any time prior to recapture can be convicted of assisting escape. The policy considerations which define escape as a continuing offense, however, are based on the nature of the crime, the threat posed by an escaped prisoner, and the defenses an escapee can present at trial. Cases holding that escape is a continuing offense have turned on the escapee’s culpability after the initial breakout from custody, in the context of the defenses of duress, see, e.g., United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); necessity, Wells v. State, 687 P.2d 346 (Alaska Ct.App.1984); lack of intent to escape, State v. Burnett, 292 Minn. 484, 195 N.W.2d 189 (1972); Parent v. State, 31 Wis.2d 106, 141 N.W.2d 878 (1966); statute of limitations, Campbell v. Griffin, 101 Nev. 718, 710 P.2d 70 (Nev. 1985), People v. Miller, 157 Ill.App.3d 43, 109 Ill.Dec. 146, 509 N.E.2d 807 (1987); and in the context of felony-murder, State v. Milentz, 547 S.W.2d 164 (Mo.Ct.App.1977). None of these situations apply here. The defendant is not an escaped prisoner. I have found no authority for the conclusion that the continuing nature of the crime of escape should serve to expand statutes defining other crimes such as assisting escape.
While I agree that the very nature of escape makes it a continuing offense for the escapee, there is a point at which the escape is complete for the purpose of determining the applicability of our assisting escápe statute. Cases dealing with the culpability of one who assists an escapee fall into two categories. The distinguishing factor is whether or not the defendant assisted in the initial departure from custody. See, e.g., State v. Bishop, 202 Cal.App.3d 273, 248 Cal.Rptr. 678 (1988) (assisting escape is helping a person in lawful custody to depart from limits of that custody, e.g., diverting suspicion, serving as a lookout, taking charge of an automobile, stopping a guard’s attempt to apprehend an escaping prisoner, furnishing information which facilitates an escape, inciting or advising escape by words); State v. Jones, 54 Idaho 782, 36 P.2d 530 (1934) (the prisoner was employed outside the jail, in the custody of his supervisor, when defendant gave him money which enabled him to carry out his escape); Collins v. State, 174 Ind.App. 116, 366 N.E.2d 229 (1977) (two prisoners took a guard hostage and hijacked a prison vehicle; they later met defendant who arrived with a car and they drove away, thus “completing” their escape); Suan v. State, 511 So.2d 144 (Miss.1987) (defendant drove to a work center where prisoner, after leaving the center, entered the car and they drove away; assistance was of sufficient immediacy to fall within assisting escape statute). The common element in all of these cases is that defendants assisted the prisoners in their initial departure from custody or confinement.
This case is more similar to Orth v. United States, 252 F. 566 (4th Cir.1918) and United States v. Vowiell, 869 F.2d 1264 (9th Cir.1989). In Orth, the prisoner escaped and three weeks later appeared at defendant’s home. Defendant assisted the prisoner to leave the area. The appellate court found that the evidence did not support a conviction of the charge of aiding an escape. The court held that where physical control has ended by flight beyond immediate active pursuit, the escape is complete. 252 F. at 568. Likewise, the Ninth Circuit in Vowiell held that the crime of aiding an escape ends once the escapee has reached temporary safety.
By enacting NMSA 1978, Section 30-22-11 (Repl.Pamp.1984) Assisting Escape, and NMSA 1978, Section 30-22-4 (Repl.Pamp.1984) Harboring or Aiding a Felon, the legislature has defined two separate and distinguishable offenses, with different elements and penalties. The difference between the two offenses lies in the circumstances under which the assistance is given and in the intent of the individual charged. One distinguishing element is whether the prisoner was in custody at the time aid was rendered; another is the intent of the defendant. The majority, however, has blurred the distinction between these two crimes.
In order to violate Section 30-22-11, the defendant must have incited, supported or reinforced the prisoner’s exertions to escape. See SCRA 1986, 14-2220, Committee Commentary. The intent is to assist a prisoner in his efforts to leave custody. The crime of harboring or aiding a felon, on the other hand, is committed when a person “knowingly conceals any offender or gives such offender any other aid, knowing that he has committed a felony, with the intent that he escape or avoid arrest, trial, conviction or punishment.” NMSA 1978, § 30-22-4 (Repl.Pamp.1984) (emphasis added). Although under both statutes the intent is to help another in his efforts to escape, in assisting an escape, a defendant intends to aid a prisoner, confined in lawful custody, to depart from the limits of his confinement. One who violates the harboring statute, however, intends to aid a known felon in his efforts to elude the authorities.
The majority argues, in effect, that the continuing threat to society posed by escaped prisoners justifies the convictions of defendant under Section 30-22-11. Under this decision, however, a person who drives a known murderer to another state would be guilty of a lesser crime than one who assists a misdemeanant escapee to leave the county months after his escape. In addition, today’s holding removes the consanguinity exception applicable under Section 30-22-4 when a family member helps an escapee. I do not believe the legislature intended these results in enacting Section 30-22-11.
The majority has rewritten the assisting escape statute to include the aiding of any person who has escaped from lawful custody or confinement, to further escape. This is not our function. It is the legislature’s function and prerogative to define crimes. State v. Moss, 83 N.M. 42, 487 P.2d 1347 (Ct.App.1971). The legislature could very well have determined that the threat posed by one who assists in the initial breakout from custody is much greater than that posed by one who assists an escaped prisoner already at large. Statutes are to be given effect as written and, where free from ambiguity, there is no room for construction. State v. Elliott, 89 N.M. 756, 557 P.2d 1105 (1977). Defendant did not aid the escape of prisoners who were held in lawful custody contrary to Section 30-22-11. His conduct fell within Section 30-22-4. Because I find the charges of assisting escape improper under the facts of this ease, I respectfully dissent.