Smith v. State

• Decision Date: 08 September 1950
• Citation: 75 A.2d 538
• Parties: SMITH v. STATE.
• Court: Maine Supreme Court

Page 538

75 A.2d 538

145 Me. 313

SMITH v. STATE.

Supreme Judicial Court of Maine.

Sept. 8, 1950.

Carl G. Smith, pro se.

Ralph W. Farris, Attorney General, for the State.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

MERRILL, Justice.

On exceptions to the dismissal of a writ of error. The plaintiff in error was convicted of an escape from the Cumberland County Jail and sentenced to imprisonment in the State Prison for a term of not less than three and one-half years, nor more than seven years. He was sentenced on the tenth day of May, A.D. 1949 and the warrant of commitment issued the same day, since which time the plaintiff has been and now is held in the State Prison in execution of said sentence. On the nineteenth of January, A.D. 1950, writ of error seeking reversal of the judgment and sentence was issued by a Justice of the Superior Court. Hearing was had before said Justice of the Superior Court who, on February 6, A.D. 1950, found no error apparent on the record, dismissed the writ and ordered petitioner to serve original sentence as imposed. Exceptions to this ruling were taken and allowed, and it is upon these exceptions that the case is now before the Court.

The assignments of error and the grounds of the exceptions may be summarized as follows: First, that the indictment does not charge the plaintiff in error with the commission of any crime cognizable under any law or statute of the State of Maine; Second, that the indictment does not charge the plaintiff in error with the commission of any offense which would authorize the sentence imposed.

In the recent case of Smith v. State, 142 Me. 1, 45 A.2d 438, 439, we said: 'Writs of error issue as a matter of course in criminal cases which do not involve offenses punishable by imprisonment for life. R.S.1944, Chap. 116, Sec. 12. Nissenbaum v. State, 135 Me. 393, 197 A. 915. The issue raised by a writ of error must be determined on the record of the proceedings brought in question. Welch v. State, 120 Me. 294, 113 A. 737. It is the appropriate process for attack against a sentence imposed without authority in law, Galeo v. State, 107 Me. 474, 78 A. 867.' See also Rell v. State, 136 Me. 322, 327, 9 A.2d 129, 125 A.L.R. 602.

If error lies to reverse a sentence imposed because it is in excess of that authorized by law, a fortiori it lies when the record does not set forth the commission of any crime by the respondent for which any sentence may be imposed. In either case he is attacking the validity of the sentence. As said in Galeo v. State, supra, which was a case of an excessive sentence upon a plea of guilty: 'It is not the indictment, but the sentence that the plaintiff attacks. He only confessed the allegations in the indictment. He now raises the question that those allegations did not describe or make out an offense for which the court could lawfully impose sentence of imprisonment for eleven years in the state prison. We think he is entitled to raise that question after sentence and by writ of error.' [107 Me. 474, 78 A. 870.]

Any escape by a prisoner from lawful custody was an offense at common law. Except in those cases expressly provided for by statute, and those cases, if any, excluded by necessary implication by the terms of some statute, escapes which were crimes at the common law, are now common law crimes in this State. No penalty, however, is provided for common law criminal escapes as such. Except for escapes defined by statute and for which statutory penalties are provided, the punishment for criminal escapes is governed by the provisions of R.S. Chap. 136, Sec. 2, which provides: 'When no punishment is provided by statute, a person convicted of an offense shall be punished by a fine of not more than $500, or by imprisonment for less than 1 year.'

The indictment upon which the plaintiff in error was sentenced, he having pleaded guilty thereto, omitting caption and signatures, is as follows: 'The Grand Jurors for Said State upon their oath present that Carl G. Smith, whose full, true and correct name is to your Grand Jurors unknown, of Gary, State of Indiana, on the fifth day of April, A.D. 1949, at Portland in the County of Cumberland and State of Maine, while being then and there lawfully detained in the Cumberland County Jail, having been theretofore, to wit, on the third day of March, A.D. 1949, committed thereto for want of bail for his personal appearance at the Superior Court to be holden at Portland in said County of Cumberland on the first Tuesday of May, A.D. 1949, then and there to answer to a felony, to wit to answer to a charge of Breaking, Entering and Larceny of property having a value of more than One Hundred Dollars, and while being then and there in the lawful custody of the Sheriff of Cumberland County, and being then and there in custody in said Cumberland County Jail, at said Portland, did then and there break and escape from said custody and confinement, against the peace of said State, and contrary to the form of the statute in such case made and provided.'

The plaintiff in error contends that this indictment does not sufficiently charge him with the commission of any offense either under the statutes of this State or at common law, and that therefore the sentence imposed was unauthorized. He further contends that even if it does charge him with an offense, the punishment inflicted is in excess of that provided by law therefor, and that the sentence imposed is void and must be vacated.

The only statutory provision relative to escapes that might be applicable is R.S. Chap. 122, Sec. 28, which is as follows: 'Escapes from jail; penalty. Whoever, being lawfully detained for any criminal offense in any jail or other place of confinement, except the state prison, breaks or escapes therefrom, or forcibly attempts to do so, shall be punished, if such prisoner was in custody for a felony, by imprisonment for not less than 1 year, nor more than 7 years; and if for any other offense, by imprisonment for not more than 11 months; such imprisonment shall commence after the completion of any sentence imposed for the crime for which he was then in custody.'

Unless the foregoing indictment sufficiently sets forth a violation of this statute, the sentence imposed was excessive, even should the indictment be sufficient to sustain a conviction for common law escape, the maximum penalty for which is imposition of a fine of not more than $500 or imprisonment for less than one year.

R.S. Chap. 122, Sec. 28 only applies to escapes by persons 'being lawfully detained for any criminal offense'. The applicability of this statute to escapes from jail depends upon two facts: First, the escapee must be 'lawfully detained' in the jail; Second, the detention must be 'for a criminal offense'. Both of these elements of the crime are traversable facts. Both must be established by the State beyond a reasonable doubt. Both must be sufficiently set forth in the indictment. Unless the allegations of fact set forth in the indictment show the 'lawful detention' of the escapee, and that the detention was 'for a criminal offense', the indictment is fatally defective so far as setting forth a violation of this statute is concerned. 'Indeed, it is an elementary rule of criminal pleading that every fact or circumstance which is a necessary ingredient in a prima facie case of guilt must be set out in the indictment.' State v. Doran, 99 Me. 329, 332, 59 A. 440, 441, 105 Am.St.Rep. 278.

It is to be noted that of these two elements of the statutory offense the first, 'lawful detention' is also an element of common law escape. The effect of the statute is not the creation of a new and distinct offense. It merely provides a specific penalty for certain common law escapes which are brought within its terms by the other requirements as to the place from which the escape is made and the cause of the detention. It makes certain escapes felonies which were misdemeanors.

One of the essentials of a lawful detention in a jail is that the commitment thereto be made by lawful authority. That is an essential traversable fact which must be established by the State to make out a prima facie case. The indictment charges that the respondent escaped, having been committed to the jail 'for want of bail for his personal appearance at the Superior Court' at a named term 'then and there to answer to a felony'. The indictment fails to show upon its face any facts from which the lawfulness of the commitment may be determined. It does not show by whom or by what authority the commitment was made. There is not even a direct allegation that he was 'lawfully' committed. Although the indictment follows the language of the statute and alleges the escape 'while being then and there lawfully detained in the Cumberland County Jail', this allegation is not sufficient. It sets forth no facts from which the lawfulness of the detention may be determined. Nor is it aided by the allegation with respect to the commitment. That allegation neither alleges its lawfulness nor sets forth any facts from which its lawfulness may be determined. In passing it may be noted that the indictment does not even allege that the detention was by virtue of and under the commitment.

'An indictment or information against a prisoner for effecting his escape should show the original cause of imprisonment, and by what authority he was delivered into custody--so that the lawfulness of the custody will appear--and that the prisoner did escape and go at large.' 7 Ency.Pl. & Prac. 914. See also 2 Chitty's Crim.Law, 5th Am.Ed., 159; 1 Russell on Crimes, 430.

'The Indictment (for escape) will in detail vary with the form of the offence; and, if statutory, the particular terms of the statute; and with the special facts. But it must contain such a setting out that the custody under which the defendant was held and its lawfulness will appear, on its face showing the...