APPEAL from the Circuit Court of Will County; the Hon. ANGELO
F. PISTILLI, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Francis Unger appeals from a conviction by the Will County Circuit Court, following a jury trial, of the crime of escape (Ill. Rev. Stat. 1971, ch. 108, § 121). On appeal in this court, he alleges that there was error in the giving and refusal of certain instructions and in the admission into evidence of certain portions of an interview with him shortly after he was arrested.
Defendant, a 22-year-old full-blooded Crete Indian, arrived at Stateville Penitentiary in Joliet in late December 1971. He was serving a term of 1 to 3 years imposed following a guilty plea to a theft charge in Ogle County.
In the course of the trial, defendant Unger testified that at some time during the first two months of his imprisonment, while he was working in the clothing room, he was threatened by an inmate who possessed a 6-inch knife and defendant was told he would be required to engage in homosexual activity with the inmate. Defendant requested and received a transfer to the minimum security honor farm where, one week later, on March 2, 1972, he was beaten and forcibly sexually assaulted by a gang of prisoners. In his testimony he named three of the assailants. He stated that he did not tell the authorities about the incident because he was told he would be killed if he did so and was afraid he would be killed. Several days following the attack, on March 7, 1972, he received a phone call in the evening while working at the dairy farm. The caller (whose voice he did not recognize) informed him that he would be killed that evening as the caller had heard that defendant had gone to the authorities about the sexual assault and the beating. After receiving the call, Unger walked off the dairy farm. He was apprehended two days later in a motel room at St. Charles, Illinois. He was still wearing his prison clothes. He stated in his testimony that he left the honor farm in fear of his life and intended to return to the institution. Unger was first tried on the charge of escape in a trial that resulted in a hung jury. He was convicted after a second trial, following a 5-hour jury deliberation before a guilty verdict was reached. He was thereafter sentenced to a term of 3 to 9 years in the penitentiary, to be served consecutively to the remainder of the theft term (as provided by statute).
In the cause from which this appeal is taken, the trial court gave the following instruction (No. 9) submitted by the State over defense objections:
"The reasons, if any, given for the alleged escape are immaterial and not to be considered by you as in any way justifying or excusing, if there were in fact such reasons."
Defendant argues that the submission of this instruction of the jury was tantamount to directing a verdict for the State; that it was a direction to the jury to disregard relevant evidence pertaining to the issue of intent and the credibility of the witnesses; and, also, that it cast doubt on the credibility of defendant himself. Defendant also assigns error on the court's refusal to give instructions on the defenses of necessity and compulsion. (See Ill. Rev. Stat. 1973, ch. 38, §§ 7-11, 7-13.) We recognize that it is an established rule that a defendant is entitled to have a jury consider any legally recognized defense which is supported by some evidence in the record, and that he is entitled to have the jury instructed not only on his theory of the case, but on the law applicable to any state of facts which the jury might properly find to have been proven. Only very slight evidence is necessary to justify the appropriate instruction. See City of Chicago v. Mayer, 56 Ill.2d 366, 370, 308 N.E.2d 601 (1974); People v. Stombaugh, 52 Ill.2d 130, 138, 284 N.E.2d 640 (1972); People v. Adcock, 29 Ill. App.3d 917, 331 N.E.2d 573 (3rd Dist. 1975).
The State cites the case of People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969), to justify the giving of the Instruction No. 9 referred to. The court, however, in the California case, pointed out that the reasons for the alleged escape in that case were immaterial and not to be considered by the jury for the reason that Richards felt that he was doing too much time and wanted to go to his mother's house and get a lawyer to see if something could be done. The California court in that case specifically noted at 269 Cal.App.2d 768, 778, 75 Cal. Rptr. 597, 604:
"This is not a case where a prisoner departed from the limits of his custody while pursued by those who would take his life because he `snitched,' or by those who sought by force and violence to have him submit to sodomy."
The California court there expressly found that the Richards case was not a case of the type we have before us, where defendant Unger had alleged that his life had been threatened and that he had been beaten and forced to submit to sexual acts. Apparently under the California precedent, the "reasons" assigned for the escape in the instant case would have been found to be relevant by that court.
The affirmative defense of compulsion exists where a person commits a crime "under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct." (Ill. Rev. Stat. 1973, ch. 38, § 7-11.) The defense of necessity is defined: "Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct." Ill. Rev. Stat. 1973, ch. 38, § 7-13.
• 1 Obviously, inmates in a penitentiary should not be permitted to escape by assigning reasons which they tailor to suit their own whims. We cannot, however, say that as a matter of law, an escape could never be justified under the statutes referred to. According to defendant's story, he was young and not a particularly strong man, he was heterosexual, and was beaten and forced to submit to homosexual acts. While obviously there were other avenues open to defendant of a more legal nature, such as appealing to the authorities rather than escaping, he may very well have felt so threatened as to feel that such an appeal would be futile and that he would be killed or suffer great bodily harm. It was clear from the testimony of the State's witnesses that homosexual activities occurred in the prison, including sexual assaults on unwilling inmates (and even upon the prison doctor) and that there were "gangs" of inmates perpetrating such assaults. The prison authorities apparently have not been able to provide complete security to prisoners.
• 2 On the basis of the record, therefore, the Instruction No. 9 given by the court, which told the jury that the reasons, if any, given for the alleged escape are immaterial and not to be considered by the jury as in any way justifying or excusing the escape, if there were in fact such reasons, was improper. The jury was thus told in substance that they could disregard completely the reasons assigned by defendant for escaping and his contention that he escaped for the purpose of saving his life and intended to return. The fact that the case was a close one is apparent from the circumstance that the first time the case was tried, it resulted in a hung jury, and thereafter the jury required a 5-hour period of deliberation before returning a verdict of guilty. We should make the cautionary observation that excuses for an escape must necessarily be viewed with great care and unsupported or fanciful assertions would not be sufficient to establish a defense to the charge of escape. A defendant, however, even if in prison, should be afforded the opportunity to establish his defense and proper instructions should be given on such issue, based on the record in the trial court.
This case involves an issue which is becoming increasingly significant by reason of the apparent inability of prison authorities to control the actions of gangs of inmates who are criminally assaulting other inmates with sexual assaults and other acts of violence, as indicated in 1975 U. Ill. L.F. 271, in a note analyzing the case of People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974). The caption in the note recites that "California court holds the defense of necessity available to prison escapees." The note examines the entire issue of escape from prison by inmates who assert that they were forced to escape to ...