In re Culver

I dissent. I would deny the petition for the reasons expressed by Mr. Justice Bray in the opinion prepared by him for the Court of Appeal in In re Culver (Cal. App.) 68 Cal.Rptr. 544 .

In this habeas corpus proceeding, petitioner attacks his conviction of violating Penal Code section 4532, subdivision (b), escape from custody, on the ground that the undisputed facts establish that the statute did not prohibit his conduct. (See In re Zerbe (1964) 60 Cal.2d 666, 668 [ 36 Cal.Rptr. 286 , 388 P.2d 182 , 10 A.L.R.3d 840 ].)

On the evening of August 11, 1961, a deputy sheriff received a call in his patrol car stating that a person of petitioner ’s description had struck another person with a pool cue during a poolroom fight and was wanted by the authorities. Shortly thereafter the officer saw petitioner running across a field, apprehended him, and placed him under arrest. Petitioner struggled with the officer and fled. At that time no charges had been filed against him. Within an hour petitioner was again apprehended and taken into custody. At the time of the initial arrest the arresting officer had neither an arrest warrant nor reason to believe that a crime had been committed in his presence. He was therefore required, if he was to arrest petitioner at all, to arrest him for the commission of a *900 felony. (Pen. Code, § 836.) The felony for which petitioner was…