Alex v. State

• Citation: 484 P.2d 677
• Decision Date: 26 April 1971
• Docket Number: No. 1224,1224
• Parties: Alador ALEX, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 677

484 P.2d 677

Alador ALEX, Appellant, v. STATE of Alaska, Appellee.

No. 1224.

Supreme Court of Alaska.

April 26, 1971.

James K. Singleton, Jr., Anchorage, for appellant.

G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty. and Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee.

Before BONEY, C. J., and DIMOND, RABINOWITZ and CONNOR, JJ.

OPINION

BONEY, Chief Justice.

Appellant, Alador Alex, was convicted following a jury trial of the crime of felony escape. The facts involved have been stipulated by counsel.

On May 11, 1969, Alex was confined at the Adult Conservation Camp in Palmer where he was serving a sentence imposed after conviction of a felony. Alex failed to appear for the 4:30 p. m. meal on Sunday, May 11, 1969. He was subsequently located at approximately 1:00 a. m. on May 12, 1969 in the City of Anchorage. On May 21, 1969, Alex was indicted for the crime of felony escape under AS 11.30.090.

At his trial, Alex testified in his own behalf. He stated that on the date of his escape, he was nervous, upset, and suffering from dermatitis and lack of sleep. May 11, 1969 being a Sunday, there was no work or assigned chores for Alex, and after receiving permission, Alex walked down to the prison dump where he noticed a path. Alex testified that he remembers starting down the path, but at the point he suffered a lapse of memory.

Alex' nest recollection was being in the middle of the Palmer highway where a car stopped to avoid hitting him. As it turned out, the woman driving the car offered Alex a ride, which he accepted. He claims he told the woman he needed a ride back to the Palmer Camp and she agreed to take him. Instead, the woman drove to Palmer and purchased a bottle of liquor. Alex stated that he accepted liquor from the woman. became intoxicated, and lost track of what he was doing.

According to Alex' testimony, his next memory was of being in Anchorage with the woman. He became frightened about being absent from the camp for so long a time. In an effort to return, he sought and found an old girl friend with a car. Alex contends that he was being driven back to the Palmer Camp when he was apprehended by the authorities.

As a result of his absence from the Palmer Camp on May 11, 1969, Alex forfeited 168 days of statutory good time. In addition, he was prosecuted and convicted of escape. From that conviction, Alex has brought this appeal.

Alex has raised four issues in his appeal. The first two are directed toward the element of intent required by Alaska's escape statute. The third raises a question of double jeopardy. The fourth questions the constitutionality of Alaska's escape statute.

In his first point on appeal, Alex argues that the trial court erred in not instructing the jury that a specific intent to avoid the due course of justice is an essential element of the crime of escape. AS 11.30.090, Alaska's escape statute, is silent as to the definition of the crime of escape and as to its requisite element of intent. ¹ Consequently, it is proper to look to previous statutory interpretations by this court and to the common law background of the crime.

In Richards v. State, 451 P.2d 359, 361 (Alaska 1969), this court had occasion to construe AS 11.30.090, and to take note of the essential elements of the crime. We held:

It was established that appellant was convicted of burglary, was committed to the custody of the Commissioner of Health and Welfare for a period of three years by reason of such conviction, was placed in the Fairbanks jail as designated by the commissioner under such judgment and commitment, and left that jail without lawful authority before his sentence had been served. This was proof of the essential elements of the crime of escape from custody or confinement.

In Richards, we failed to mention an intent to evade the due course of justice as an essential element of the offense. However, since Richards did not specifically raise a question of intent, the case is not necessarily controlling. Lacking a clear construction of the Alaska escape statute, we turn to the common law.

Alex has relied heavily upon two Colorado cases for the proposition that a specific intent to evade the due course of justice is an element of the crime of excape. Lewis v. People, 159 Colo. 400, 412 P.2d 232 (1966); Gallegos v. People, 159 Colo. 379, 411 P.2d 956 (1966). However, the cases cited by Alex do not stand unopposed in their interpretation of the law. Numerous authorities have held that no specific intent is required to commit the crime of escape. State v. Marks, 92 Idaho 368, 442 P.2d 778 (1968); People v. Goldman, 245 Cal.App.2d 376, 53 Cal.Rptr. 810 (1966), partially overruled on other grounds, In re Smiley, 66 Cal.2d 606, 58 Cal.Rptr. 579, 583, 427 P.2d 179, 192 (1967); People v. Miller, 196 Cal.App.2d 171, 16 Cal.Rptr. 408 (1961); People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (1960); Wiggins v. State, 194 Ind. 118, 141 N.E. 56 (1923); State v. Leckenby, 260 Iowa 973, 151 N.W.2d 567 (1967); State v. Wharff, 257 Iowa 871, 134 N.W.2d 922 (1965).

State v. Marks, supra, contains a highly persuasive holding indicating specific intent was not a necessary element of the crime of escape at common law. Marks is directly opposed to the Colorado cases relied upon by Alex. In Marks, the appellant, a convict, was riding with a group of prisoners in the back of a prison truck. Marks claimed that while the truck was stopped at an intersection a prisoner fell out. Marks left the truck to see whether the prisoner needed help, and other inmates followed. The truck drove off leaving the prisoners alone in the intersection. In affirming Marks' conviction, the Idaho Supreme Court upheld a lower court's ruling that a lack of specific intent to evade the due course of justice was not a defense to the crime of escape.

The reasoning of the Idaho court in reaching its decision is significant. That court looked to the common law to determine the meaning of the term 'escape'. The Idaho court cited and rejected the reasoning in Gallegos and Lewis, the Colorado cases relied upon by Alex. The basis of that rejection is a far more extensive and informative review of the early authorities than was undertaken in Gallegos or Lewis. The Idaho court concluded that at common law a specific intent to evade the due course of justice was not necessary to establish an escape. In other words, all that is required to constitute an escape is the voluntary intent to depart from custody. Wharton is in accord with this view:

The ordinary intent required to constitute the offense of escape * * * is the intent to do the act voluntarily which results in the unlawful liberation from custody. 3 R. Anderson, Wharton's Criminal Law and Procedure § 1372 (1957).

In addition, the Idaho court examined Riley v. State, 16 Conn. 47 (1843), which was the keystone of the Colorado Supreme Court's decisions, and noted that the Connecticut court resorted to dicta in discussing intent, and that it is difficult to resolve whether specific or general intent was being considered in that discussion.

It was further observed in Marks that Riley and Lewis involved circumstances where a prisoner had apparent authority to leave custody. While these situations present appealing cases for relief, the same results could be obtained without requiring a specific intent, through the use of mistake of fact reasoning as to the defendant's permission to leave. Finally, in opposition to the discussion in Riley, Marks cited the early English decision of Hobert and Stroud's Case, Cro.Car. 209, 79 English Rep. 784 (1630), where it was held that 'if a person be committed to a particular place and instead of confinement within the walls goes at large, he may be indicted for the misdemeanor, although he had the gaoler's permission.' ²

We conclude that the weight of authority, as reviewed by the court in Marks, indicates that only a general intent is required for the crime of escape. We hold that no specific intent to avoid the due course of justice need be proven to establish the crime of escape under AS 11.30.090. The trial court committed no error in failing to instruct on a specific intent requirement.

In his second point on appeal, Alex argues that the trial court's instructions were erroneous under this court's holding in Speidel v. State, 460 P.2d 77 (Alaska 1969). At trial, Alex requested an instruction which paraphrased Speidel. So far as pertinent, the instruction read, 'conduct cannot be criminal unless it is shown that the one charged with criminal conduct had an awareness or consciousness of wrongdoing'. The reliance Alex places upon Speidel stems from the following statement in that case:

It is said to be a universal rule that an injury can amount to a crime only when inflicted by an intention-that conduct cannot be criminal unless it is shown that one charged with criminal conduct had an awareness of some wrongdoing. ³

Emphasizing Speidel Alex contends that an awareness or consciousness of wrongdoing is an essential element of a general criminal intent. This being so, Alex argues that the trial court committed error when it instructed:

To constituted the criminal intent necessary in the crime of escape it is necessary that the person intend to do an act which, if committed, would constitute a crime. Criminal intent exists whenever a person does that which the law declares to be a crime, even though he may not know that he is is committing a crime or that his act is wrong.

The contention raised by Alex requires us to consider what is necessitated by our holding in Speidel. In making our determination, we look to those basic principles and policies of our system of law which formed the foundation of that decision.

In Speidel, we dealt with a statute which made it a crime to fail to return a motor vehicle 'without regard for the rights of the owner' or 'with indifference whether a wrong is done the owner or...