State v. Burris
| Decision Date | 08 May 1961 |
| Docket Number | No. 48318,No. 2,48318,2 |
| Citation | 346 S.W.2d 61 |
| Parties | STATE of Missouri, Appellant, v. Jackie L. BURRIS, Respondent |
| Court | Missouri Supreme Court |
John M. Dalton, Atty. Gen., Calvin K. Hamilton, Asst. Atty. Gen., for appellant.
T. E. Lauer, Cave & Lauer, Fulton, for respondent.
The information in this case was, on motion of the accused (respondent), and prior to judgment, adjudged insufficient, thereby entitling the State to prosecute this appeal under Rule 28.04, V.A.M.R.
Omitting the formal parts of the opening sentence, the information charges 'that on or about the 15th day of December, 1958, in the Circuit Court of Stoddard County, Missouri, the defendant, Jackie L. Burris, was duly and lawfully sentenced to the custody of the Department of Corrections of the State of Missouri for a period of eight years for the crimes of burglary and larceny; that on or about the 22nd day of September, 1959, the said defendant, Jackie L. Burris, was duly and lawfully imprisoned in the Missouri State Penitentiary, the same being an institution within the Department of Corrections of the State of Missouri, under said lawful sentence for felony theretofore imposed by the Circuit Court of Stoddard County, Missouri, and was then and there duly serving said sentence; that on or about the 22nd day of September, 1959, the said defendant, Jackie L. Burris, was, by order of the Division of Classification and Assignment of the Department of Corrections of the State of Missouri, transferred to State Hospital No. 1 at Fulton, Missouri, for custody, care and treatment for mental illness; that on or about the 25th day of September, 1959, and prior to the expiration of and prior to his legal discharge from imprisonment pursuant to said sentence of eight years for burglary and larceny, imposed by the Circuit Court of Stoddard County, Missouri, on or about the 15th day of December, 1958, as aforesaid, the said defendant, Jackie L. Burris, while confined and imprisoned in said Missouri State Hospital No. 1, at Fulton, Missouri, in compliance with said sentence and pursuant to the said order of the Division of Classification and Assignment of the Department of Corrections of the State of Missouri, as aforesaid, did, in Callaway County, Missouri, unlawfully, knowingly, intentionally and feloniously, by force and violence, break out of and escape from said imprisonment and confinement in the said Missouri State Hospital No. 1 at Fulton, Missouri, contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Missouri.'
The question presented is whether a prisoner lawfully transferred from a correctional institution of this state to a state mental hospital 'for custody, care and treatment' as provided by Sec. 546.623(2), 1 and who, prior to the expiration of his sentence, escapes from such hospital can be charged with the felony of escape under Sec. 557.351. This section provides: 'If any person confined in an institution under the control of the state department of corrections, or in lawful custody going to any such institution, or to any agency of the state department of corrections, or in custody of any officer or employee of the state department of corrections, escapes therefrom, or attempts to escape therefrom, he shall upon conviction be punished by a sentence to the department of corrections generally for a term of not less than two years and not exceeding five years.' As a penal statute, it is to be strictly construed against the State, and liberally in favor of defendant. The section was enacted by Laws 1959, H.B. No. 10, the title of which reads of follows: 'An Act to repeal sections 557.350, 557.360, 557.370 and 557.400, RSMo1949, relating to escapes from prison, and to enact in lieu thereof one new section relating to the same subject, to be known as section 557.351, with an emergency clause.' (Emphasis supplied.) This Act was approved April 17, 1959, and became effective on that date because of the emergency clause appended thereto, the emergency being declared to be: 'There is at present no adequate law in this state punishing escapees from the Algoa Intermediate Reformatory and, because of the fact that many inmates are escaping from said institution and endangering the lives and property of the public,' etc.
A breakdown of Sec. 557.351 reveals that it sets up or creates three categories or situations in or under which the offenses it denounces (escape and attempting to escape) may be committed; that is, to be amenable to its sanctions, a person must have been either:
(1) '[C]onfined in an institution under the control of the state department of corrections'; or
(2) 'in [any] lawful custody going to any such institution, or to any agency of the state department of corrections'; or
(3) 'in custody of any officer or employee of the state department of corrections.' (Emphasis and bracketed word supplied.)
Obviously, the facts alleged in the information do not bring the case within category '(1)' because it is not alleged (nor is it contended here) that State Hospital No. 1 is 'an institution under the control of the state department of corrections.' Indeed, the State expressly admits it is not such an institution, the correctness of which concession is made clear by those provisions of Sec. 202.020 which specifically vest administrative control of said hospital (and other named institutions) in the division of mental diseases of the state department of public health and welfare, and authorize such division, with the approval of the said department, to 'make all necessary orders for the government, administration, discipline and management of all such institutions.' See, also, Sec. 202.035(3).
Similarly, category '(2)' may be dismissed as inapplicable because it is not alleged in the information (nor contended here) that defendant escaped in transit, i. e., 'while in lawful custody going to any such institution [under the control of the state department of corrections]' or 'while
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State in Interest of M. S.
...States, 119 U.S.App.D.C. 246, 339 F.2d 745 (D.C.Cir. 1964); Zimmer v. State, 247 N.E.2d 195 (Ind.Sup.Ct.1969); Contra, State v. Burris, 346 S.W.2d 61 (Mo.Sup.Ct.1961). For cases finding defendant guilty of escape upon absconding from a hospital to which he was transferred from prison, see U......
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State v. Alderman
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