State v. Eads

• Decision Date: 15 October 1975
• Docket Number: No. 2--56981,2--56981
• Parties: STATE of Iowa, Petitioner, v. William R. EADS, Judge of The District Court in and for Johnson County, Respondent.
• Court: Iowa Supreme Court

Page 108

234 N.W.2d 108

STATE of Iowa, Petitioner, v. William R. EADS, Judge of The District Court in and for Johnson County, Respondent.

No. 2--56981.

Supreme Court of Iowa.

Oct. 15, 1975.

Carl J. Goetz, County Atty., and Lawrence L. Lynch, Asst. County Atty., for petitioner.

Daniel L. Bray, Johnson, Penny & Bray, Iowa City, for respondent.

Submitted to MOORE, C.J., and REES, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

This certiorari proceeding presents the issue whether a county jail prisoner who fails to return following work release may be prosecuted for escape, a violation of § 745.8, The Code.

May 7, 1973, Thomas Shehorn was convicted of receiving and concealing stolen property. He was sentenced to serve one year in the Johnson county jail. May 11, 1973 he made application for work release pursuant to what is now §§ 356.26 through 356.36, The Code. A district court order entered the same date provided Shehorn 'be given opportunity to be released for employment and work release under the provisions of the Iowa law and upon proper application for daytime work subject to the approval of the Sheriff of Johnson County, Iowa.'

Shehorn signed a 'Work Release Agreement' which provided, Inter alia, he would return to Johnson county jail at completion of his day's work and would not leave the territorial limits of Johnson county without the sheriff's written consent. By separate attached page he acknowledged he understood he was subject to the provisions of § 356.36 (contempt of court) and § 665.4(2) (punishment for contempt).

September 11, 1973, Shehorn failed to return to the Johnson county jail after work. He was apprehended on October 13, 1973 in Colorado and returned to Iowa.

A county attorney's information charging escape in violation of § 745.8 was filed. Shehorn's demurrer to the information was overruled by a district court judge other than respondent. Subsequently the defense filed a motion to adjudicate law points which was presented to respondent judge. The motion alleged the facts asserted 'do not constitute a crime under Section 745.8 of the Code of Iowa.' Certain other facts were stipulated on submission. Neither party challenges this manner of raising the issue. See Reynolds v. Nowotny, 213 N.W.2d 648, 651 (Iowa 1973); Mechanicsville T. & S. Bank v. Hawkeye-Security I. Co., 158 N.W.2d 89, 90 (Iowa 1968).

Respondent ruled, 'Defendant, Thomas Shehorn, is not liable under Section 745.8 for the crime of Breaking Jail--Escape in case No. 6154.' We granted the State's petition for writ of certiorari, and now sustain the writ.

I. In a certiorari proceeding where, as here, there are no factual disputes and no conflicting inferences to be drawn from the facts it is for us to review trial court's conclusions as a matter of law. And in reviewing law issues this court is not bound by trial court's ruling. State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975) and citations.

II. Only a portion of § 745.8, The Code, is relevant here:

'If any person confined in any jail * * * break jail and escape therefrom, or escape from the custody of the officer charged with his keeping, he shall be guilty of a felony * * *.'

Particularly pertinent is the following from the same chapter:

'745.2 Actual breaking not necessary. In order to constitute an escape under the provisions of * * * section 745.8, it is not necessary that the prisoner be within any walls or enclosure nor that there shall be any actual breaking nor that he be in the presence or actual custody of any officer or other person.'

A consideration of relevant statutory provisions must include § 356.26, which states the district court 'may grant by appropriate order to any person sentenced to a county jail the privilege of leaving the jail at necessary and reasonable hours' for certain specified purposes, including employment. The same section provides, 'All released prisoners shall remain, while absent from the jail, in the legal custody of the sheriff, and shall be subject, at any time, to being taken into custody and returned to the jail.' Section 356.28 authorizes the sheriff or other suitable person or agency to secure employment for 'unemployed prisoners granted privileges under sections 356.26 to 356.36, inclusive.' Section 356.32 authorizes the sheriff to whom the prisoner is initially committed to contract with the sheriff of another county for the prisoner's employment in the latter county 'and while so employed to be in the others' custody.' Section 356.36 states any person who fails to return to jail 'after the hours of release authorized by the court order' and 'who does not thereby fall within the provisions of section 745.8, may be deemed guilty of contempt of court and punished as provided in section 665.4.'

Respondent's brief asserts Shehorn was released from jail pursuant to § 356.26, which, as noted above, carefully preserves the concept that such prisoners remain in the sheriff's legal custody. Thus as this controversy is postured, both parties agree Shehorn was in the sheriff's custody before he left Iowa for Colorado.

Custody begins when an arrest is made and continues until the defendant is lawfully discharged. 3 Wharton's Criminal law and Procedure § 1373, p. 765 (1957). An escape is usually held to have been committed where there is simply a departure from legal custody. 27 Am.Jur.2d, Escape, Prison Breaking, and Rescue § 1, p. 849 (1966); 30A C.J.S. Escape § 2, p. 876 (1965). No force is required. Annot., 96 A.L.R.2d 520, 522 (1964). To be guilty of an escape the prisoner may depart either a constructive or an actual custody. Custody of either type will satisfy the custodial requirement of § 745.8. See § 745.2 ('It is not necessary that the prisoner * * * be in the * * * actual custody of any officer'); cf. State v. Rath, 258 Iowa 568, 573, 139 N.W.2d 468, 471--472 (1966) ('A parole officer's physical apprehension of his prisoner * * * is a mere transfer of the subject from constructive custody into actual or physical custody'); State v. Baker, 355 Mo. 1048, 1052, 199 S.W.2d 393, 395 (1947) ('(T) here must be an actual or constructive custody').

It is plain that Shehorn when on work release remained in the constructive custody of the Johnson county sheriff. This is the clear import of § 356.26, which states a prisoner on work release remains in the 'legal' (constructive) custody of the sheriff and may at any time be 'taken into (actual) custody.' This custodial concept is reinforced by § 356.32 which provides for transfer of custody to the sheriff of another county in which the prisoner may be employed.

It is equally plain when Shehorn, even though on work release, left for Colorado without permission there was a departure from legal custody, constituting the crime of escape. 27 Am.Jur.2d, supra; 30A C.J.S., supra; Lueders v. Brewer, 218 N.W.2d 638, 640--641 (Iowa 1974). While there is no Iowa case directly on point, the overwhelming weight of authority supports this view. See United States v. Perez, 457 F.2d 555 (6 Cir. 1972) (prisoners volunteering as research subjects left clinical research center); United States v. Rudinsky, 439 F.2d 1074 (6 Cir. 1971) (prisoner with outside employment attached to treatment center failed to return); United States v. Hollen, 393 F.2d 479 (4 Cir. 1968) (prisoner on work release failed to return); McCullough v. United States, 369 F.2d 548 (8 Cir. Cir. 1964) (prisoner working for private employer time to guidance center); Frazier v. United States, 119 U.S.App.D.C. 246, 339 F.2d 745 (1964) (prisoner left mental hospital); Nace v. United States, 334 F.2d 235 (8 Cir. 1964) (prisoner working for private emplohyer out of a guidance center absconded); People v. Labrum, 25 Cal.App.3d 105, 101 Cal.Rptr. 602 (1972) (prisoner overstayed 'temporary community release' from narcotic detention facility); People v. Perez, 24 Cal.App.3d 340, 100 Cal.Prtr. 834 (1972) (prisoner failed to return from a 72 hour temporary release from detention center); People v. Owens, 236 Cal.App.2d 403, 46 Cal.Rptr. 91 (1965) (prisoner at conservation center assigned to forest fire fighting crew under supervision of a foreman of Division of Forestry left fire lines without permission); People v. Haskins, 177 Cal.App.2d 84, 2 Cal.Rptr. 34 (1960) (prisoner in work furlough program failed to return to jail farm as instructed); State v. Holbrook, 318 A.2d 62 (Me.1974) (prisoners on furlough failed to return); State v. Warden of the Maryland Penitentiary, 196 Md. 672, 75 A.2d 843 (1950) (prisoner departed while working without a guard on a private farm); Shifflett v. State, 4 Md.App. 227, 242 A.2d 182 (1968) (trustee of county jail departed while working in the court clerk's office); State v. Baker, supra (prison farm prisoner absconded when permitted to go to the river out of guard's presence); State v. Ford, 281 N.C. 62, 187 S.E.2d 741 (1972) (prisoner departed when permitted to attend an out-of-prison movie with a 'volunteer'); State v. Furlong, 110 R.I. 174, 291 A.2d 267 (1972) (prisoner departed while in work release program); State v. Kiggins, 86 S.D. 612, 200 N.W.2d 243 (1972) (prisoner on work release left the state).

While the above decisions involve varying escape statutes, all support the view an escape charge may be grounded on a departure from constructive custody, as in the litigation Sub judice. Shehorn's conduct falls squarely within the prohibition of § 745.8 as interpreted under the provisions of § 745.2.

II. Respondent's brief advances several arguments in support of the district court's holding there was no § 745.8 escape. Two are worthy of consideration.

Respondent's brief notes a special statute makes an absconder from the territorial limits of parole guilty of escape (§ 745.3), and with respect to inmates of state institutions on work release, another special code section makes a failure to return an escape (§ 247A.6). As there is no similar special 'escape' statute relating to...