State v. Bowling

459 P.2d 454, 1 Or. App. 103, 1969 Ore. App. LEXIS 105

• Court: Court of Appeals of Oregon
• Decided: October 10, 1969
• Status: Published

Opinion

SCHWAB, C. J.

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-1, §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 F2d 327, 328 (Ct App, 4th Cir 1950), cert. den. 340 US 893, 71 S Ct 200, 95 L Ed 647 (1950).

To the same effect see State v. Kennedy, 253 Or 145, 453 P2d 658 (1969); Mullican v. United States, 252 F2d 398, 70 ALR2d 1217 (Ct App, 5th Cir 1958) and People v. Wilson, 6 Mich. App 474, 149 NW2d 468 (1967).

There was no double jeopardy.

Affirmed.