Flanagan v. State ( 1994 )

Beasley, Presiding Judge,

concurring specially.

I concur, but not with all that is in the second paragraph of Division 1.

Appellant’s first enumeration is that the evidence is insufficient and the verdict is contrary to justice and equity. His argument, as set out in the brief, is two-fold: 1) the evidence did not show he was in custody as a matter of fact; that is, the evidence did not show he was “in custody”; and 2) the evidence did not show he was in custody as a matter of law; that is, even if he was “in custody” as a matter of fact, this is not the type of custody from which escape is prohibited.

The second question is not “implicit.” It is the alternative support for his first enumeration.

In addition, the evidence was not sufficient to submit the issue to the jury, because as a matter of law, he was not in custody as contemplated by the criminal statute.

So I cannot agree with these two statements made in the majority opinion, page 468. Otherwise, I concur.

Decided March 16, 1994. Albert A. Myers III, for appellant. Cheryl F. Custer, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.