People v. Noble , 18 Mich. App. 300 ( 1969 )

18 Mich. App. 300 (1969) 170 N.W.2d 916

PEOPLE
v.
NOBLE

Docket No. 7,026.

Michigan Court of Appeals.

Decided June 26, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Paul R. Adams, Chief Appellate Counsel, for the people.

Charles A. Nelson, for defendant.

Before: LESINSKI, C.J., and QUINN and DANHOF, JJ.

LESINSKI, C.J.

Defendant appeals his conviction for escape from prison contrary to MCLA § 750.193 (Stat Ann 1969 Cum Supp § 28.390).

Defendant's first allegation of error is that he was not arrested and arraigned promptly after being captured and returned to prison. After formal charges were brought, he was promptly arraigned, so there is no question of a violation of MCLA § 764.26 (Stat Ann 1954 Rev § 28.885). Defendant's real contention is that the prison authorities denied him due process of law by keeping him in detention for 36 days after his recapture before charging and arraigning him for the escape. "There is no constitutional right to be arrested." Hoffa v. United States (1966), 385 US 293, 310 (87 S Ct 408, 417, 17 L Ed 2d 374).^[1] Defendant was properly incarcerated under his original conviction; we fail to see how the delay in bringing the escape charge has prejudiced him. Cf. People v. Nawrocki (1967), 6 Mich App 46, 54.

Defendant's second contention is that it was error to deny his motion for mistrial after the arresting officer testified that he placed defendant under arrest for "strong-armed robbery". The trial judge properly warned the jury to disregard this reference to another crime not relevant to the escape. Defendant argues that this warning by the judge merely "reemphasized" the error. To follow this line of reasoning, there would have to be a mistrial every time a witness misspoke, since no error could ever be cured by instructions. Such is obviously not the law. An unresponsive answer by a witness can generally be cured by proper instructions. People v. Kelsey (1942); 303 Mich 715.

Defendant next maintains that his record of conviction was not properly introduced in evidence as a "business record", so that the prosecution failed to prove that he was properly confined at the time of the escape. However, it is not necessary to introduce the certificate of confinement as a business record, since MCLA § 800.50 (Stat Ann 1954 Rev § 28.1419), provides that the certified copy of the sentence which is deposited with the prison warden "shall be evidence of the facts therein contained". Defendant does not contend that the document admitted was not the proper one.

Finally, defendant protests that he only fled the prison work camp in desperation to avoid homosexual attacks by other prisoners. The problem of homosexuality in the prisons is serious and perplexing, and never more so than in a case such as this where such activity is forced upon a young man against his will. However, the answer to the problem is not the judicial sanctioning of escapes. While we have no reason to doubt the sincerity of this defendant, it is easy to visualize a rash of escapes, all rationalized by unverifiable tales of sexual assault. The solution must rather come from some kind of penological reform.

Two legal theories are offered to support defendant's claim that his departure from the prison work camp should not be punished as an escape. First, he argues that he did not have the specific intent to escape. A reading of the escape statute, MCLA § 750.193 (Stat Ann 1969 Cum Supp § 28.390),^[2] shows no indication that the legislature intended to make this a specific intent crime. The language is rather that of general prohibition. Defendant does not deny that he intended to leave the prison, and this is all the intent the law requires. Cf. 1 Gillespie, Michigan Criminal Law and Procedure, § 20. Second, defendant seeks to justify his escape as caused by an irresistible impulse. The trial court properly excluded the evidence proffered on this point, since defendant did not give the required four-day notice of an insanity defense, MCLA §§ 768.20, 768.21 (Stat Ann 1954 Rev §§ 28.1043, 28.1044). The record does not support defendant's claim that he did not have four days' notice of the trial date; defendant's counsel signed subpoenas on November 14 for appearance on the trial date of November 20.

Affirmed.

All concurred.

NOTES

[1] The Court is aware of People v. Hernandez (1968), 15 Mich App 141, which by a decision of 2 to 1 considers a delay in arrest a violation of due process. This panel does not agree with the holding of that case and will not follow it until the ruling of that case is determined controlling in similar cases by the Michigan Supreme Court.

[2] "Any person, being imprisoned in a prison of this state for any term, who * * * shall leave said prison without being discharged from said prison by due process of law, * * * shall be guilty of a felony."