Harding v. State

• Decision Date: 29 June 1970
• Docket Number: No. 5513,5513
• Citation: 455 S.W.2d 695,248 Ark. 1240
• Parties: Don E. HARDING and Thomas M. Hildebrandt, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 695

455 S.W.2d 695

248 Ark. 1240

Don E. HARDING and Thomas M. Hildebrandt, Appellants, v. STATE of Arkansas, Appellee.

No. 5513.

Supreme Court of Arkansas.

June 29, 1970.

Odell C. Carter, Star City, for appellants.

Joe Purcell, Att. Gen., Milton R. Lueken, Asst. Atty. Gen., Little Rock, for appellee.

JONES, Justice.

Don E. Harding and Thomas M. Hildebrandt were convicted in the Lincoln County Circuit Court of the crime of attempt to escape. They were sentenced to three years in the penitentiary and on appeal to this court rely on the following points for reversal:

'These cases should be reversed and dismissed since the trial court refused to take any action upon the Motion for a new trial until the next term of Court.

These cases should be reversed and dismissed for the reason that the State did not prove that there was a conviction and that the alleged attempted escape was from a confinement by virture of lawful imprisonment or confinement.

A. mistrial should have been granted upon proof that the juror was exposed, during the trial, to improper influence.

The verdict is contrary to the weight of the evidence.'

Since we must reverse and remande this case for error alleged under appellants' second point, the alleged erros under the other points will not likely arise again and to consider them here would only add volume without substance to this opinion.

The law which the appellants were accused of violating is Ark.Stat.Ann. § 41--3513 (Supp.1969), which reads as follows:

'It shall be unlawful for any person who is lawfully imprisoned in any jail, or other place of confinement, or held in the custody of any officer, for any cause whatsoever to escape, or attempt to escape, from such imprisonment or custody without the use of force or violence to the person; and upon conviction therefor, such person shall be imprisoned for a period of not more than three (3) years; provided however, that the sentence imposed under this provision for the crime of escape or attempt to escape from imprisonment or custody shall not exceed the period of confinment imposed for the conviction of the offense for which such person is imprisoned, or prescribed by law for the conviction of the offense for which said person may be in the custody of any officer.'

The appellants were charged on separate, but identical, informations filed by the prosecuting attorney in the following language:

'The said defendant on the 20th day of June, 1969, in Lincoln County, Arkansas, did then and there wilfully, unlawfully, being a convict sentenced to the Arkansas State Penitentiary, and being held in custody on the Cummins Unit at Grady, Arkansas, a branch of the Arkansas State Penitentiary, in pursuance of an order of commitment regularly issued, did then and there wilfully, unlawfully and feloniously attempt to escape from said penitentiary, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Arkansas.'

The record reveals the following facts: The isolation cells at the Cummins branch of the Arkansas Penitentiary consist of heavy wire cages inside a building and unruly prisoners are assigned to these cells as punishment for violation of prison rules and regulations. Armed guards are stationed in elevated 'towers' around the isolation area and trusty guards keep a close check on the isolation cells inside the building. The appellants were isolated together in one of the isolation cells and Booker T. McDonald was one of the trusty guards. About 10 p.m. on June 20, 1969, the appellants were discovered outside the isolation cell and outside the isolation building. The wire forming the top of the isolation cell had been cut above the sink in the cell and the wire had been pulled or bent down, forming a rectangular or square hole in the top of the cell. The trusty guards testified that when the appellants' cell was found empty about 10 p.m., an alarm was sounded and a searchlight from the tower revealed the appellants running away from the isolation building toward a new building under construction near a fence. The two guards fired several shots at the appellants and Hildebrandt was wounded in the side. The appellants' testimony differs considerably from that of the guards. They explained that for some reason, which was not quite clear to them, but in any event, wholly without foundation, guard Booker T. McDonald had formed a dislike for them, and when he found them inspecting a hole some former inmate or other person had cut in the wire top of their isolation cell, McDonald forced them, at the point of his cocked and loaded revolver, to climb through the hole and leave the building. The only logical conclusion they were able to drawn from such conduct on the part of McDonald, was that McDonald wanted them killed in a prison break. They testified that they were actually on their way back to the isolation cell with their hands raised when the guards started shooting at them. McDonald and the other guards testified that McDonald had been relieved for his evening meal and had not returned from the dining area when the appellants were discovered outside their cell by the other guards, including McDonald's relief guard.

The question of whose version of the facts is correct is not important on this appeal, for this case does not turn on the voluntariness of the appellants' acts in leaving the cell. The state argues that 'the record is replete with testimony from which the jury could easily believe that appellants were convicted felons and in lawful custody at the time they made their attempt to escape.' The state has failed to specifically point out such testimony and we have been unable to find such in the record. It might be easy to believe that the appellants were convicted felons and in lawful custody, otherwise they would never have been in an isolation cell in the state penitentiary. Especially is this true since the appellants did not deny that they were lawfully imprisoned in the isolation cell at the penitentiary. The trouble with this approach, however, is that one must be lawfully imprisoned or held in custody before he can be guilty of escape or attempt to escape. The burden rests on the state to prove its allegations against the appellants, and does not lie on the appellants to disprove the allegations made by the state.

The mere fact of physical custody or imprisonment is not such evidence that will sustain a conviction for escape or attempt to escape. The lawfulness of the imprisonment or custody from which the escape is made or attempted is the statutory essence of the criminal offense of escape or attempt to escape, and the lawfulness of tne imprisonment or custody from which the escape is made or attempted must not only be alleged by the state in the indictment or information, it must also be proved. It may be argued that a person who is incarcerated in the state penitentiary and spends a great deal of time in isolation for infraction of rules may be presumed to be lawfully imprisoned. No such presumption attends the charge of escape or attempt to escape under the statute or under our prior decisions.

In State v. Murphy, 10 Ark. 74, Murphy escaped from the penitentiary and was recaptured and tried for escape. The record of his original trial and conviction was placed in evidence. The identity of the prisoner was the real point in issue. The jury was instructed, at Murphy's request, that they could not find the prisoner guilty, unless they were satisfied from the evidence that he was the same identical Westley Murphy who was so convicted and sentenced for larceny. The Attorney General then moved the court to instruct the jury that any such question as to the personal identity of the prisoner at the bar was waived by his plea of not guilty to the indictment; and that upon the introduction of the transcript of the record of the Johnson Circuit Court, the jury were bound, by law, to presume, in the absence of any proof to the contrary, that the prisoner at the bar was the same identical Westley Murphy, appearing by said transcript to have been so convicted and sentenced for the crime of larceny. In affirming the trial court's failure to give this instruction, this court said:

'The fact that the accused was the same individual that had been convicted of larceny in the Johnson Circuit Court, was a material and traversable averment in this indictment, and by coming in and pleading the general issue, he did not admit his identity in respect to that conviction. The offence charged upon the defendant in the Court below, can be committed by a convict only, and in order to fix that character upon him it devolves upon the State to prove his conviction by the record, and his personal identity by proof aliunde.' (Emphasis added).

In Sandford v. State, 11 Ark. 328, the state was permitted to read into the record, on trial for escape, judgment from transcript of the original conviction for larceny, in order to show that the prisoner had been legally convicted.

In 70 A.L.R.2d § 3, under Anno.: Justification for Escape, is found the following:

'Mere confinement within prison walls, in violation of the law of the state, does not make such imprisonment a lawful one from which it is a crime to escape if opportunity offers, said the court in People v. Ah Teung (1891) ...