Fabian v. State

• Decision Date: 29 February 1968
• Docket Number: No. 131,131
• Parties: Charles Richard FABIAN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 270

3 Md.App. 270

239 A.2d 100

Charles Richard FABIAN v. STATE of Maryland.

No. 131.

Court of Special Appeals of Maryland.

Feb. 29, 1968.

[239 A.2d 103] Gerard Wm. Wittstadt, Dundalk, for appellant.

Donald Needle, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, Samuel A. Green, Jr., and Robert A. DiCicco, State's Atty. and Asst. State's Atty. for Baltimore County, respectively, Towson, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

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 consecutively 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 missing. ¹

                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, 213 A.2d 475, 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
                [239 A.2d 104]    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 hollored 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 '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, viz. 1. without any act of force, and this is a simple escape. 2. With an act of force, viz. by breach of prison'. 1 Hale P.C. 590 as quoted in Perkins, Criminal Law (1957) Ch. 5, p. 428.

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:

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 '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 ways of preventing the perpetration of crimes, and of reforming offenders, is by a mild and justly proportioned scale of punishments; therefor BE IT ENACTED * * * that the offenses herein after mentioned against the government and the supremacy of the laws, shall be punished in manner following * * *'.

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:

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 '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 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,...