Artrip v. State, 3 Div. 91

• Decision Date: 09 January 1962
• Docket Number: 3 Div. 91
• Citation: 136 So.2d 574,41 Ala.App. 492
• Court: Alabama Court of Appeals
• Parties: Robert ARTRIP v. STATE.

Page 574

136 So.2d 574

41 Ala.App. 492

Robert ARTRIP v. STATE.

3 Div. 91.

Court of Appeals of Alabama.

Jan. 9, 1962.

Robert Artrip, pro se.

MacDonald Gallion, Atty. Gen., and Jerry L. Coe, Asst. Atty. Gen., for the State.

CATES, Judge.

Artrip appeals from a judgment convicting him of escaping from the penitentiary while serving a sentence. Code 1940, T. 14, § 153, as amended. He was sentenced to two years further confinement.

Artrip did not adduce evidence to support a traverse of the indictment, contenting himself merely with developing matters of avoidance and mitigation. The State's evidence made out a prima facie case.

On arraignment Artrip pled former jeopardy, alleging in part as follows:

'* * * defendant herein while serving a sentence in the Alabama Penitentiary * * * escaped * * * Upon return to prison petitioner was forthwith punished for said escape by State authorities by being placed in solitary confinement for a period of 5 (five days) on bread and water. * * * following which, * * * petitioner was further punished * * * for (30) more days by confinement in what is termed the segregation unit of the prison. * * * Incidently, the prison being a maximum security prison it cannot be argued an inmate is placed in the segregated unit for maximum security, or (safe keeping) since that would apply to all inmates in population at Kilby, the prison being a maximum security one.

'Petitioner * * * contends he has in actuality been submitted to a period of (35) days of punishment for his escape * * * and * * * the facts and matters herein * * * would bar a subsequent prosecution for the same offense (escape). * * *'

The State demurred to this plea, one of the grounds assigned being that the plea affirmatively showed Artrip had not been placed in jeopardy for the offense charged in the indictment. The trial judge sustained the demurrer.

Administrative or disciplinary punishment, we have recently held, is a matter cognizable, certainly in the first instance, by the Board of Corrections. Phillips v. State, Ala.App., 133 So.2d 512. These punishments whether involving degrees of isolation or corporal chastisement are within the discretion of the Legislature provided they are not cruel and unusual. Allgood v. State, 20 Ala.App. 665, 104 So. 847 (dictum); 18 C.J.S. Convicts § 11; Constitution, § 15; Code 1940, T. 45, §§ 36, 49 and 50.

Illustratively (though without adopting the opinion in toto), we quote from Howard v. State, 28 Ariz. 433, 237 P. 203, 204, 40 A.L.R. 1275:

'* * * If, for example, a prisoner attempts to escape from the * * * confinement * * * prescribed by * * * law, * * * it is highly proper that such stricter confinement be imposed as may be necessary to hold him. If he persists in violating the reasonable rules which are necessary in such an institution, he will naturally be deprived of the privileges extended to those who comply therewith, and it will not lightly be presumed that an officer of the law will require stricter confinement or deprivation of privileges without just cause therefor.'

Infliction of disciplinary penalties to be endured contemporaneously with a sentence being served under a judgment of a competent court does not lengthen the court-imposed sentence. Therefore, the administrative determination does not put the convict in jeopardy because the punishment is only of a harsher degree (but within the law) and not of a new term.

Jeopardy is ordinarily considered not to attach until an indictment has been read to a jury 'impaneled and sworn.' We need not elaborate on the ramifications; they may be traced from the opinion in Lyman v. State, 47 Ala. 686. The trial judge's sustaining the demurrer was correct.

In his brief Artrip points out that counsel appointed for him withdrew for want of payment of a requested fee of $100.00. No statute nor local court or bar rule requires lawyers in the Fifteenth Judicial Circuit to represent defendants without compensation. No statute, except Code 1940, T. 15, § 318 (capital cases), provides for counsel for poor defendants.

The judgment entry recites in part as follows:

'* * * such convict was by occupation a mechanic, and that the cause of the commission of the crime was unknown; said convict is of male sex, white race and is about 40 years of age and his physical condition is good.'

The wording of the indictment was clear and concise. The elements of offense are capable of being readily understood, viz., (1) escape from (a) the penitentiary or (b) a person or guard lawfully having him in charge--either within or outside the walls; and (2) before the expiry of a sentence.

The offense, though it now permits confinement for as long as life, not being capital, does not fall under the rule in Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, so as to make the absence of counsel a denial of due process of law.

Nor do we think that the exceptions to Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, as shown in Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4, Cash v. Culver, 358 U.S. 633, 79 S.Ct. 432, 3 L.Ed.2d 557, and McNeal v. Culver, 365 U.S. 109, 81 S.Ct. 413, 5 L.Ed.2d 445, would apply here.

From Jones v. Cochran, Fla., 125 So.2d 99, at 102, we excerpt:

'The necessity for the appointment of counsel in order to meet Fourteenth Amendment requirements is influenced largely by the following factors: (1) the gravity of the offense, (2) the nature and complexity of the issue, (3) the age of the defendant, (4) his mental capacity, (5) background, including education and experience, (6) knowledge of law and procedure and, (7) the degree of protection given during the trial as appears from the conduct of the Court or prosecuting officials. 93 L.Ed. 149. No one of these factors alone is decisive. As pointed out in Betts v. Brady, supra, it is necessary to appraise the totality of the facts and decide whether the need for counsel is so great that the deprivation of such assistance produces a fundamental unfairness.'

Artrip was considered a good all round mechanic and electrician by his superviser at the Kilby motor pool. His original brief was well typed and concisely stated a number of pertinent points. His supplemental briefs which exhibit good penmanship are slso pertinent to the contentions he advances.

Aside from the irrationality of his escaping while under a relatively short sentence, appellant has, on this record and in his briefs, shown himself to be intelligent. He was confronted with an accusation of an uncomplicated nature. He presented a plea grounded on native wit which merited and received here serious legal consideration.

This claim of double jeopardy by reason of administrative punishment could not have been enhanced by counsel.

Artrip makes no claim of mental illness which might have impeded his ability to defend himself. He cross-examined the two prosecuting witnesses and addressed the jury twice, though only entitled to but one argument.

We find in the record no circumstance which, because of Artrip's lack of a lawyer, could characterize his conviction as being...