State v. Bowling

459 P.2d 454 (1969)

STATE of Oregon, Respondent, v. Billy Ray BOWLING, Appellant.

Court of Appeals of Oregon.

Argued and Submitted September 16, 1969.

Decided October 10, 1969.

*455 Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Gary D. Gortmaker, Dist. Atty., Salem, argued the cause and filed the brief for respondent.

Before SCHWAB, C.J., and LANGTRY, FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

Defendant Bowling was indicted, tried by jury and convicted of attempted escape from official detention, specifically from the Oregon State Penitentiary in which he was duly confined as a prisoner by judicial order. After the attempt and prior to the trial, he was placed for a period in isolation, and thereafter for a time in segregation by the prison authorities.

The sole question presented on this appeal is whether an individual is placed in double jeopardy when punished by the prison disciplinary board and then by a court for the same act. The pertinent constitutional provisions are:

"* * * [N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *." Fifth Amendment, United States Constitution,

and

"No person shall be put in jeopardy twice for the same offence (sic) * *." Art. I, § 12, Oregon Constitution.

This precise question has been considered by other courts:

"* * * Criminal prosecution for the crime of escape is not prohibited under the double jeopardy clause of the fifth amendment because a convict guilty thereof has upon his recapture been subjected to discipline by the prison authorities for the violation of prison discipline involved * * *." Patterson v. United States, 183 F.2d 327, 328 (Ct.App., 4th Cir.1950), cert. den. 340 U.S. 893, 71 S. Ct. 200, 95 L. Ed. 647 (1950).

To the same effect see State v. Kennedy, 88 Or.Adv.Sh. 309, 453 P.2d 658 (1969); Mullican v. United States, 252 F.2d 398, 70 A.L.R.2d 1217 (Ct.App., 5th Cir.1958) and People v. Wilson, 6 Mich. App. 474, 149 N.W.2d 468 (1967).

There was no double jeopardy.

Affirmed.