Fabian v. State

Orth, J., delivered the opinion of the Court. On March 13, 1967 the appellant was convicted in the Circuit Court for Baltimore County by the court without a jury under a criminal information charging that on January 17, 1966 he “* * * then and there being legally detained and confined in a place of confinement, to wit: the Baltimore County Jail, did escape, in violation of Article 27, Section 139 of the Annotated Code of Maryland, 1957 Ed. * * He was sentenced to imprisonment for a term of 2 years to run consecu ²⁷³ lively with a 4 year sentence previously imposed. He had been convicted of housebreaking and offenses relating to forgery in October 1965, elected to have the convictions invalidated under the decision in Schowgurow v. State, 240 Md. 121 , and was returned to the Baltimore County Jail to await retrial. It was while he was awaiting the retrial that he allegedly escaped.

Valid indictments being returned against him, he was again tried in March of 1966, convicted of uttering and received the sentence of 4 years. At the trial on the escape charge there was evidence before the court that a bench warrant was issued for the appellant on December 14, 1965 directing the Sheriff to pick him up and bring him to court to answer a presentment for housebreaking. It showed on its face “Cepit Jail (the Baltimore County Jail), December 20, 1965.” The appellant was confined in Section B-8 of the Baltimore County Jail in “maximum security.” Section B-8 was an area consisting of a day room, where prisoners exercise and shower, and four separate cells, two containing four bunks each and two containing two bunks each. The area was secured by bars on three sides, with the cells on the fourth side.

The doors to the separate cells were usually left open until about 9:30 P.M., at which time they were locked to confine the prisoners in the cells to which they were assigned. Prior to 9:30 P.M. all the prisoners assigned to the cells had access to the day room. The bars on one side of the day room were about four feet from a wall of the jail building, leaving a catwalk between the day room and the wall. In the wall were windows leading to the outside of the building.

The windows were about three feet by five feet in size and each was covered with ordinary screening. A guard on duty at the jail on January 17, 1966 testified that about 7:10 P.M. all the prisoners assigned to B-8 were within that area and all the bars enclosing the area were intact. About 7:30 P.M. an alarm rang and he went to B-8 and saw that some of the bars along the catwalk were “bent and sawed.” He observed two prisoners “in the catwalk standing over the window.” He called to them to return inside B-8 and “two or three more men came up.” He got them all in the cells and locked the cell doors. He then made a check and found that the appellant and another prisoner were miss ²⁷⁴ ing. 1 The window screen had been removed and was lying in the catwalk.

Sheets were tied to the window rod and were hanging out the window down the wall to the ground. One sheet had torn off and was on the ground. Another guard was “outside working in the greenhouse” about 7:30 P.M. when he heard “this awful noise.” He heard it again, looked out and saw sheets hanging from the window of the jail. He saw a “fellow coming down the sheet, and he was hanging on the window sill, and I hollered at him and he went back in.” This guard sounded the alarm.

He went to B-8 and the appellant and one other prisoner were missing. THE SUFFICIENCY OF THE EVIDENCE The appellant contends that the evidence was not sufficient to sustain the conviction. He alleges that the evidence at best proved him guilty of prison breach and not escape, that the physical act of escape was not proved and that he was illegally detained or confined. Prison Breach or Escape The appellant urges that since the evidence “definitely showed that force was used, that is the cutting of the bars,” in effecting his departure, he was guilty of prison breach and not escape as charged.

This argument is predicated upon the common law distinction between a prison breach and escape. In support of his argument the appellant refers, without discussion, to “Wharton’s Criminal Law, Vol. 2, Chapter XLIX” and Wharton’s Criminal Law and Procedure, Vol. 3, Chapter 51,” but to resolve the question presented by the contention it is necessary that we examine the common law, trace the history of the Maryland statute and review the decisions of the Court of Appeals on the subject. Although minor offenses were punished under the ancient criminal law, the emphasis was on treason and felonies, punishable by forfeiture of life and lands and goods. Therefore, when ²⁷⁵ escape was first considered as an offense, it was the custodian whose wilfullness or negligence made it possible, and not the prisoner, who was deemed to have incurred criminal guilt.

The name of the crime committed by the jailer was “escape.” As developed in the common law, escape was of three kinds: “1. By the person that hath the felon in his custody, and this is properly an escape; and 2. When the escape is caused by a stranger, and this is ordinarily called a rescue of a felon. 3. By the party himself, which is of two kinds, vis. 1.

Without any act of force, and this is a simple escape. 2. With an act of force, vis. by breach of prison.” 1 Hale P. C. 590 as quoted in Perkins, Criminal Law (1957) Ch. 5, p. 428. Today the term “escape” is usually used only with reference to the escaper. It is noted, however, that by statute it is a crime to aid or assist in an escape.

Md. Code, supra, Art. 27, § 139. Considering escape only with relation to the escaper himself, at common law it meant the unauthorized departure of a prisoner from legal custody without the use of force. Prison breach was the unauthorized departure of a prisoner from legal custody accomplished by the use of force. Wharton, Criminal Law and Procedure (Anderson) Vol. 3, § 1367-1368.

The statute de fragentibus prisonam, 1 Edw. II, Stat. 2, A. D. 1307, provided : “Concerning Prisoners which break Prison, our Lord the King willeth and commandeth, that none from henceforth that breaketh of Prison shall have Judgment of Life or Member for breaking of Prison only, except the Cause for which he was taken and imprisoned did require such Judgment, if he had been convict thereupon according to the Law and Custom of the Realm, albeit in times past it hath been used otherwise.” According to Lord Coke, having “Judgment of Life or Member” meant “being attained of felony” but the felony was within benefit of clergy. See 1 Hale, 612. The grade of prison breach, therefore, was a felony or misdemeanor according to the grade ²⁷⁶ of offense for which the party was detained.

Hochheimer, Law of Crimes and Criminal Procedure, 1st Ed. § 770, p. 475. Hochheimer refers to “force” as an actual breaking, although it may be of the slightest kind “such as accidentally displacing loose bricks while getting over prison walls.” Any place where a person was detained on a criminal charge was a “prison,” whether “the common gaol, the street, the house of the constable or of a private person.” It was immaterial whether the prisoner detained was under accusation or conviction and whether he was guilty or innocent. Alexander's Br. St., Vol. 1, p. 215; Hochheimer, supra, p. 475.

On January 6, 1810, the General Assembly of Maryland passed Chapter 138 of the Acts of 1809, entitled, “An Act Concerning Crimes and Punishments.” The preamble read as follows: “Whereas it frequently happens, that men resigning themselves to the dominion of inordinate passion, commit great violations upon the lives, liberties or property of others, which it is the great business of the laws to protect and secure, and experience evinces that the surest way of preventing the perpetration of crimes, and of reforming offenders, is by a mild and justly proportioned scale of punishments; therefore BE IT ENACTED * * * that the offenses herein after mentioned against the government and the supremacy of the laws, shall be punished in manner following * * Section 32 provided : “That if any such offender, sentenced to undergo a confinement in the penitentiary, shall escape, he or she shall, on conviction thereof, suffer such additional confinement and hard labour, agreeable to the directions of this act, and shall also suffer such corporal punishment, not extending to life or limb, as the court of oyer and terminer and gaol delivery for Baltimore County shall adjudge and direct.” It is obvious that the statute, limited to those sentenced to undergo confinement in the penitentiary, did not encompass all the circumstances under which a person committed common law ²⁷⁷ escape or prison breach by departure from lawful custody. So Chancellor Kilty, stating that the statute de fragentibus prisonam was not mentioned in the Act of 1809, “although there is a provision in the 32d section, as to escapes from the penitentiary, and in the 7th section as to fugitive felons—i. e. persons who had been convicted and condemned to serve and labour as criminals,” considered that the statute de fragentibus prisonam was proper to be incorporated into the common law of Maryland, “subject however to the direction contained in the 11th section of the act aforesaid (Act of 1809, ch. 138), in place of the benefit of clergy.” 2 Kilty, Report of English Statutes (1811). The Acts of 1837, ch. 320, § 18 retained the limitation of escape to “any offender sentenced to undergo a confinement in the Penitentiary” and provided for “such additional confinement and hard labour, agreeably to the laws of this State, as Baltimore City Court shall adjudge and direct.” The Acts of 1927, however, made a material change. Chapter 374 repealed the former statute and re-enacted it to read as follows: “If any offender or person legally detained and confined in the Penitentiary, or Jail, or House of Correction, or Reformatory, or Station House, or any other place of confinement, in this State, shall escape * * * he shall, on conviction thereof * * * be sentenced to ²⁷⁸ such confinement * * * as the Court may adjudge, for not more than ten years.” The Acts of 1943, ch. 25 clarified the provisions by specifying that the escaper shall, on conviction of escape, be sentenced, to confinement “for such additional period, not exceeding ten years, as the Court may adjudge.” The Acts of 1963, ch. 157 reduced the sentence for escaping from the Reformatory for Males, if the escape did not involve an assault, to confinement not to exceed three years.

The Acts of 1966, ch. 628 made the crime a felony effective June 1, 1966. 3 We think it clear that the General Assembly in proscribing escape from lawful confinement, as now codified in Md. Code (1967 Repl. Vol.), Art. 27, § 139, did not intend a distinction between departure by force and a departure without, force. None of the acts establishing the law as now codified specified the use of force and we deem it significant that chapter 157 of the Acts of 1963 reduced the punishment for escape-from the Reformatory for Males if the escape did not involve-an assault, leaving the implication that other escapes involving-an assault are within the statute. Sufficient force may be shown by the assault of a guard even though no part of the prison building or enclosure is severed or broken.

Wharton’s Criminal Law and Procedure, (Anderson) Vol. 3, § 1368, p. 760. Thus we feel that “escape” as used in Art. 27, § 139 encompasses departure from lawful custody from any place of confinement, by the use of force or without the use of force as known in the common law, and so includes the common law crime of prison breach. Words do not always retain their common law meaning when incorporated in a statute, Glickfield v. State, 203 Md. 400 , and we do not feel that “escape” in the statute here considered means only the common law “simple escape.” The decisions of the Court of Appeals support this view. In Baker v. ²⁷⁹ State, 205 Md. 42 , the Court rejected the contention that “escape” must be construed in the light of its common law definition, holding in effect that the legislative intent shown was “to create a new crime analogous to an old one.” On at least two occasions convictions under the statute were upheld where the offense would have been prison breach at common law.

In Ford v. State, 237 Md. 266 the prisoner “broke away from his guard and ran out of the courtroom.” In Slagle v. State, 243 Md. 435 , departure from the Clifton T. Perkins State Hospital was effected by the cutting and removal of steel window bars from the room in which the appellant was detained. There is no merit to the contention that the evidence was not sufficient to show that the appellant was guilty of escape as charged on the ground that he was guilty only of prison breach. The Physical Act of Escape The allegation that the physical act of escape was not proved is based on the appellant’s claims, first, that the evidence showed merely that he had departed from the maximum security area and did not show that he left the jail building, and, second, that under the statute the escape must be “from those places so enunciated in the statute and not from any place within the enunciated institutions.” We do not agree with either premise. First, it was clear that the appellant was not within the maximum security area after he was found to be missing and it appears that the only way he could leave that area and be missing was through the sawed and bent bars to the catwalk and from there out the window and down the sheets to the ground outside the jail proper. 4 The evidence neither directly nor by inference, supports the argument that he still may have been in the jail building.

There was testimony that the appellant had “got out,” that he was “brought * * * back” to the jail after-wards, and that “the police said about three hours later they picked both of them up, (the appellant and the other missing prisoner), and * * * kept them over at Headquarters,” returning them to Jail the next day “but he (the appellant) wasn’t back there that night.” We think that the evidence and proper ²⁸⁰ inferences therefrom were sufficient for the trial court to find that the appellant departed from the jail proper. Second, we think it immaterial whether or not the appellant departed from the jail proper in the face of the evidence clearly showing his departure from the maximum security area and the manner in which it was effected. In discussing the physical act of escape, Perkins, in his Criminal Law (1957), Ch. 5, p. 432, said: “[A] prisoner may be guilty of an escape from his cell although unable to get beyond the prison walls. In other words the limits within which a prisoner may be required by law to remain, at a certain time, may be the walls of his cell, the walls of his prison, the boundaries of the prison farm, the immediate presence of his guard on the street or elsewhere, the general area of a project on which he is working, such as a road job, or some other.

Whatever the limits may be for him at the time a departure therefrom is the physical part of an escape.” We do not find the provisions of the statute under which the appellant was charged to be inconsistent with this statement. The crime proscribed is committed when “* * * any * * * person legally detained and confined in * * * jail * * * or any other place of confinement * * * shall escape * * *.” Md. Code, (1967 Repl. Vol.), Art. 27, § 139. Although the appellant was in the jail, he was required to remain within the maximum security area within the jail at the time of his departure.

It was a place of confinement and he was confined in that area. By escaping therefrom he violated the statute, whether or not he left the jail building. 5 ²⁸¹ We think that the evidence was sufficient for the trial court to find the appellant committed the physical act of escape. Legal Detention By the terms of the statute, to commit the crime of escape the escaper must depart from legal detention or confinement. The appellant alleges that the setting of bail at $10,000 was excessive, being in violation of Article 25 of the Declaration of Rights of the Constitution of Maryland and that upon denial of his motion to reduce the amount of bail he was thereafter illegally detained.

The allegation was not raised at the trial below nor in the appellant’s brief. It is raised in a “Supplemental Brief” submitted to this Court but there is no provision in the Maryland Rules of Procedure for the filing of a supplemental brief. The point is not properly before us and we need not decide it. Md. Rules, 1085.

In any event the record is silent as to the proceedings with respect to the setting of bail and the denial of the motion for reduction as claimed. Although an accused who is charged with an offense, the maximum punishment for which is other than capital, shall be entitled to be admitted to bail, Md. Rules, 777a, we do not find, under the circumstances shown by the record, that bail in the amount of SI0,000 was excessive or that the appellant was illegally detained for that reason. We think that the appellant was legally detained at the time of his escape. Having found that there was evidence legally sufficient to prove that the appellant committed the physical act of escape while legally detained, within the purview of Art. 27, § 139, the judgment of the lower court on the evidence was not clearly erroneous and we may not set it aside.

Md. Rules, 1086. THE RIGHT TO A PRELIMINARY HEARING The appellant alleges that he was not afforded a preliminary hearing and contends that he has an “absolute right” to such a hearing. We do not agree. A preliminary hearing, relating as it does to the legality of an accused’s detention before his indictment, is not a necessary proceeding in obtaining a valid conviction.

Ferrell v. Warden, 241 Md. 432, 436 . We think it clear that an accused has no “absolute