APPEAL from the Circuit Court of Coles County; the Hon. JAMES
WATSON, Judge, presiding.
MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
A jury found defendant guilty upon two counts of escape in violation of Ill. Rev. Stat. 1969, ch. 38, par. 31-6(a). A sentence of eight to ten years was imposed. Defendant appeals.
The statute defines the charged offenses in the language:
"A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution or from the custody of an employee of that institution shall be imprisoned in the penitentiary from one to ten years."
In summary, Count II of the indictment charged that defendant had been convicted of a felony and was charged with three other felonies and escaped on December 3, 1970, while being held in the custody of an employee of the County Jail, one Tarter, a deputy sheriff and an assistant to the warden of said jail. Count IV charged that on that date while being held upon charges of the commission of a felony, the defendant intentionally escaped from one Curtis, who was the warden of the county jail and the sheriff of the county.
• 1, 2 In brief, the relevant facts are that by some arrangement defendant was taken from the jail by Tarter to visit at the home of defendant's elderly parents. Tarter authorized defendant to visit in the home for a couple of hours while Tarter waited in the car in front of the home. Defendant requested and was granted permission to extend the visit for an hour upon the plea that his invalid father was to return from the hospital. Shortly thereafter defendant departed by the back door and fled the county. Some days later he was returned and taken into custody.
It is contended that the evidence is insufficient to convict in that Tarter was a deputy sheriff rather than an "employee of a penal institution" within the language of the cited statute.
In essence, the argument made is that Par. 31-6(a) is only applicable where the escape is from the custody of employees who are "jail officers" as defined in Ill. Rev. Stat. 1969, ch. 75, par. 3a. It is urged that under the evidence defendant could only be found guilty of a misdemeanor in the escape from the custody of a peace officer under the provisions of ch. 38, par. 31-6(a). Defendant's argument would create an elaborate semantic structure of public policy upon an hypothesis that "employees" of a penal institution might be unarmed whereas a deputy sheriff or his deputy could shoot the escaping prisoner if necessary. Such hypothesis is strictly without basis in fact or in the statutory history of the offense of escape. It does not appear necessary to examine such in detail. The defendant tendered and the court gave two instructions relevant to the issue, i.e.:
"A person convicted of a felony or charged with the commission of a felony commits the crime of escape who intentionally escapes from the custody of an employee of a penal institution."
and the further instruction:
"When I use the phrase `employee of a penal institution', I mean a person who is regularly and customarily charged in his normal course of duties with the care of prisoners."
Ill. Rev. Stat. 1969, ch. 75, par. 2, provides that the sheriff shall be the warden of the jail and shall have custody of all prisoners held there. Ch. 125, par. 12, provides that appointed and qualified deputies:
"[M]ay perform any and all duties of the sheriff, in the name of the sheriff, and the acts of such deputies shall be held to be the acts of the sheriff."
We conclude that it is clear that the custody of prisoners is a part of the "normal course of the ...