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1982 OK CR 46
644 P.2d 110
Case Number: F-81-598
Decided: 04/19/1982
Oklahoma Court of Criminal Appeals

An Appeal from the District Court of Seminole County; Gary R. Brown, Judge.

Sam Baker, Jr., a/k/a Sam Winfield Baker, a/k/a Sammy Baker, a/k/a Same Castoe, a/k/a Sam Baker, appellant, was convicted of Escape from a Penal Institution, in the District Court of Wewoka County, Case No. CRF-80-191, was sentenced to two (2) years' imprisonment, and he appeals. AFFIRMED.

J.F. Wilson, Maud, for appellant.

Jan Eric Cartwright, Atty. Gen., Jimmy D. Givens, Asst. Atty. Gen., Oklahoma City, for appellee.


BUSSEY, Judge:

[644 P.2d 111]

¶1 While serving a life sentence in the state penitentiary in McAlester, the defendant escaped from the Seminole County Jail, where he had been temporarily transferred pursuant to a writ of habeas corpus ad prosequendum. He was convicted of Escape from a Penal Institution, in violation of Laws 1976, ch. 175, § 1, now 21 O.S.Supp. 1980 § 443 [21-443], in Seminole County District Court, Case No. CRF-80-191, and from a sentence of two (2) years' imprisonment, he has appealed.

¶2 As his sole assignment of error, the appellant argues that he should have been charged under 57 O.S. 1971 § 56 [57-56], Breaking Jail, and that he was thus improperly charged and convicted. This argument must fail. One remains an inmate of a state penal institution, albeit constructively, when he is temporarily absent therefrom, such as in the case before us. Boone v. State, 642 P.2d 270 (Okl.Cr. 1982); Goodson v. State, 562 P.2d 521 (Okl.Cr. 1977); McCoy v. State, 536 P.2d 1309 (Okl.Cr. 1975). The appellant was properly charged.

¶3 Accordingly, the judgment and sentence appealed from is AFFIRMED.

BRETT, P.J., and CORNISH, J., concur.