APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
After trial by jury, Glenn A. Orrs, defendant, was convicted of the offense of felony escape and was sentenced to a term of five years' imprisonment to run consecutively with terms he was already serving.
The evidence at defendant's trial disclosed that he had been convicted of four charges of burglary and was serving four concurrent terms of from three to nine years of imprisonment. During his incarceration he was assigned to the Peoria Community Correctional Center, and on May 20, 1978, having been granted a "work release," he was employed at a facility in Peoria known as the Faith, Hope, Love and Christ Christian Mission. At approximately 4:10 p.m. on said date, a resident counselor from the Peoria Community Correctional Center arrived at the mission to pick up the defendant. The defendant asked if he could have a few more minutes to complete his work, which request was granted by the counselor. After 25 minutes the defendant failed to come out of the mission, so the counselor entered the building in search of him. The defendant had fled and never returned to the correctional center.
The statutes under which the defendant was charged and convicted provide that:
"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 commits a Class 2 felony." Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a).
The defendant raises several issues in this appeal, the first being that his conviction should be reversed since the State's proof did not establish that his conduct constituted an escape.
The instant case is strikingly similar to People v. Cole (1980), 84 Ill. App.3d 347. In Cole this court determined that a defendant serving a sentence for burglary at the Peoria Community Correctional Institute committed the offense of felony escape when he refused to return to the correctional center when on furlough and when ordered to do so by a counselor.
In the instant case the defendant, in an effort to buttress his argument that he did not commit the act of escape, argues that the correctional center was not a penal institution, nor was he in the custody of an employee of such institution. It is the defendant's argument that the correctional center is a work-release facility of the Department of Corrections and hence is not a penal institution within the statutory definition of such. A penal institution is defined as:
"* * * a penitentiary, state farm, reformatory, prison, jail, * * * or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 38, par. 2-14.
• 1 As we interpret defendant's argument, it is not denied that the correctional center is an institution, but it is his contention that it is not a penal institution because the offenders assigned there are not under immediate, actual and physical restraint such as prisoners housed in cells in a walled penitentiary. For purposes of rehabilitation and hopefully for an easier and successful transition into society, a correctional center does provide its inmates with a great latitude as far as freedom of movement is concerned, and the center provides its inmates with a living arrangement and atmosphere which is far less institutionalized than that of a high security prison. These differences, however, do not change its status to that of a non-penal institution. Such a center is still under the direction of a warden, guards are present, and its inmates are sentenced law violators who are not there voluntarily. The inmates have only such freedom of movement and work opportunities as are provided to them by the supervisory officials. The poet Richard Lovelace was correct in his observation that "Stone walls do not a prison make — Nor iron bars a cage —." A correctional center falls within the definition of a penal institution as statutorily defined in section 2-14 of the Criminal Code of 1961. Ill. Rev. Stat. 1977, ch. 38, par. 2-14.
• 2 We further find no merit in the defendant's assertion that he was not in custody of an employee of the correctional center. Though referred to as a resident counselor rather than a guard, the employee who called at the mission for the purpose of returning the defendant to the center had custody of the defendant. Such custody was acknowledged by the defendant when he requested of the counselor that his return to the center be delayed for a few minutes. When the defendant disobeyed and fled, he committed an escape just as effective as one who obtained freedom by wall scaling, tunneling or through the use of force.
The defendant assigns as reversible error the trial court's action in permitting a State witness to testify that the Peoria Correctional Center was a penal institution and also the failure of the court to instruct the jury regarding the definition of a penal institution.
It is the defendant's theory that when a supervisor of the correctional center testified that the center was a penal institution, such testimony was a conclusion going to the ultimate fact, which should have been determined by the jury. We harbor serious doubts as to whether the statutory definition of a penal institution is a question of fact rather than one of law, and it is apparent that counsel for the defendant must also harbor some doubt, since, as previously noted, he peculiarly argues that as a matter of law the Peoria Community Correctional Center is not a penal institution, but as to the issue under consideration takes a contrary view or position by asserting that such determination is one of fact to be decided by a jury.
Assuming ad arguendo that whether the center was a penal institution was a question of fact, the testimony of the supervisor was nevertheless harmless beyond reasonable doubt since the record is so replete with testimony describing the center, its purpose and operation, that it can only be concluded that the jury would have ...