Com. v. Hughes

• Decision Date: 19 December 1973
• Citation: 305 N.E.2d 117,364 Mass. 426
• Parties: COMMONWEALTH v. Steven Leroy HUGHES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 117

305 N.E.2d 117

364 Mass. 426

COMMONWEALTH v. Steven Leroy HUGHES.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Dec. 6, 1973.

Decided Dec. 19, 1973.

John F. Palmer, Boston, for defendant.

Terence M. Troyer, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, HENNESSEY and WILKINS, JJ.

TAURO, Chief Justice.

General Laws c. 268, § 16, as amended through St.1955, c. 770, § 82, made ¹ it a crime for a prisoner to escape or attempt to escape 'from any penal institution other than the Massachusetts Correctional Institution, Framingham, or from land appurtenant thereto, or from the custody of any officer thereof or while being conveyed to or from any such institution.' General Laws c. 127, § 90A, as appearing in St.1972, c. 777, § 18, the 'furlough' statute, provides that '(t)he commissioner may extend the limits of the place of confinement of a committed offender at any state correctional facility by authorizing such committed offender under prescribed conditions to be away from such correctional facility but within the commonwealth for a specified period of time . . .. The administrator of a county correctional facility may grant like authorization to a committed offender in such facility. . . . A committed offender shall, during his absence from a correctional facility under this section, be considered as in the custody of the correctional facility and the time of such absence shall be considered as part of the term of sentence.' On January 18, 1973, the defendant, Steven Leroy Hughes, a prisoner at the house of correction at Billerica, was granted a furlough for the period running from 9 A.M. to 8 P.M. on that date. He faied to return by 8 P.M. and was taken in custody the next day. Did the defendant commit the crime of escape as defined and made punishable by G.L. c. 268, § 16?

The Middlesex County grand jury indicted the defendant, using the following language: 'That Steven Leroy Hughes . . . being lawfully imprisoned in the (Billerica) House of Correction . . . did break therefrom and escape.' Before trial, the defendant attacked that indictment, and moved for its dismissal, on the ground that failure to return from furlough does not constitute a crime under any statute of the Commonwealth. This motion was denied subject to the defendant's exception. At the close of the Commonwealth's case, the defendant moved for a directed verdict, ² this time arguing that, contrary to the language of the indictment he was not 'imprisoned' at the house of correction at the time of his alleged escape, having been on furlough, and therefore there was no evidence, nor could there have been, that he 'did break therefrom and escape.' This motion was denied, subject to the defendant's exception and the judge, sitting without a jury, found the defendant guilty of the crime of escape. The case is here on appeal pursuant to G.L. c. 278, §§ 33A--33G, with the assignments of error based on the denial of the defendant's motions. We hold that there was no error and that the failure to return from furlough constitutes the crime of escape as defined and made punishable under G.L. c. 268, § 16. ³

We deal first with the contention that G.L. c. 268, § 16, did not apply to the failure to return from a furlough granted pursuant to G.L. c. 127, § 90A. General Laws c. 268, § 16, enumerated four specific circumstances of escape from correctional custody other than the Massachusetts Correctional Institution at Framingham: (1) from the 'penal institution' itself: (2) 'from land appurtenant thereto'; (3) 'from the custody of any officer thereof'; or (4) 'while being conveyed to or from any such institution.' The defendant contends that none of these four circumstances existed in his case. By-passing situations (2) and (4), which are self-evidently not applicable to his case, the defendant argues that he did not 'escape' from the 'penal institution' itself, because he had permission to leave the Billerica house of correction. Likewise, he continues, he did not escape from 'the custody of any officer thereof,' since there is no evidence that during the period of his furlough he was under the custody of any correctional officer. We reject such a limited reading of G.L. c. 268, § 16. As was said in Matter of Haines, 195 Cal. 605, 621, 234 P. 883, 889 (1925), '(e)ven if the statute might be held to be susceptible of either construction, we are justified in the public interest in adopting the one favoring the punishment of all escaping prisoners. The courts will be astute to avoid a result contrary to sound sense and wise policy . . . (and) '(w)hile the intention of the Legislature must be ascertained from the words used to express it, the manifest reason and the obvious purpose of the law should not be sacrificed to a literal interpretation of such words."

It is clear from a reading of G.L. c. 127, § 90A, that the Legislature wished to introduce the concept of 'constructive custody' for purposes of defining the status of a prisoner while on furlough. 'The commissioner may extend the limits of the place of confinement . . . at any state correctional facility by authorizing . . . (the prisoner) under prescribed conditions to be away from such correctional facility but within the commonwealth for a specified period of time . . .. (The prisoner, while absent,) shall . . . be considered as in the custody of the correctional facility' (emphasis added). Thus, legally, a prisoner is as much in the custody of the correctional facility when he is on furlough as when he is physically within its walls. It therefore follows that if a prisoner violates the terms of his furlough, he has removed himself from the 'custody of the correctional facility.'

Literally, G.L. c. 268, § 16, did not make it a crime to remove oneself from the 'custody of the correctional facility.' The statute did, however, provide punishment for escape from the 'penal institution' itself. While most likely that language was originally designed for escapes from the physical confines of the institution, it can, and indeed should, see Matter of Haines, supra, be construed in light of (1) the statute's over-all purpose of deterring and punishing prisoner escapes, and (2) the introduction of the concept of 'constructive custody' in G.L. c. 127, § 90A. Importantly, c. 268, § 16, did not define, and thereby limit, the term 'penal institution,' and thus the language is open to interpretive expansion suited to changes in the area of corrections which have come about since the time of its formulation. We believe that G.L. c. 127, § 90A, brings about such a change, constructively, in the meaning of 'penal institution' in the context of the furlough program with its provision that '(t)he commissioner may extend the limits of the place of confinement . . . at any state correctional facility' by granting a furlough (emphasis added). Conceptually, then, the Legislature authorized the commissioner or other appropriate officer to 'extend the limits of the place of confinement' when, acting under this statute, he authorizes a committed offender to be away from a correctional facility, and to contract the limits upon the expiration of the time prescribed by him. We believe that it follows that any committed offender who without authority goes beyond the limits of his place of confinement, whether the limits be as determined by the original sentence, or as extended by authority of this statute, or as contracted after the expiration of such an extension, can be held to have escaped from a 'penal institution' within the meaning of G.L. c. 268, § 16. See People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (1960); State v. Furlong, R.I. ^a; contra, United States v. Person, 223 F.Supp. 982 (S.D.Cal.1963).

To adopt the defendant's argument would be to conclude that the Legislature either intended no sanction for failure to return from furlough, or was so careless as to overlook the question. We reject both theories. The defendant argues that for programs analogous to furlough, such as work release, G.L. c. 127, § 49, the Legislature has specifically defined escape and prescribed lesser penalties than those imposed under c. 268, § 16, and therefore the Legislature could not have rationally intended to treat furlough escapes under G.L. c. 268, § 16. We disagree. In the past the Legislature has indicated an awareness of, and has given its attention to, the problem of escape under liberalized custody circumstances. Thus it can reasonably be assumed that in this instance the Legislature considered excepting furlough escapes from the operation of G.L. c. 268, § 16, and rejected the idea. ⁴ Consistent with this assumption is the fact that G.L. c. 127, § 49, under which the commissioner may permit the release of committed offenders for participation in certain education, training or employment programs 'outside a correctional facility,' does not authorize the commissioner, as § 90A expressly does, to 'extend the limits of the place of confinement' of such persons. Sections 49 and 90A were revised simultaneously as part of the same legislative package involving correctional institutions. St.1972, c. 777, §§ 13, 18. We must assume that the Legislature intended the inclusion of the quoted language from § 90A to have some meaning and we must give it due effect. The absence of similar language in § 49 suggests that the Legislature thought it necessary to include in that section express language making the failure to return to the penal institution from a program outside the correctional institution punishable as an escape.

Next, the defendant argues, that if we hold G.L. c. 268, § 16, was applicable, a furlough escapee would be punished more severely than a work release escapee. This does not necessarily follow and in fact the opposite may be true. Under c. 127, § 49, failure to return from work release is punishable by a term of 'not less than three years...