State v. Flemming

• Decision Date: 07 September 1977
• Citation: 377 A.2d 448
• Parties: STATE of Maine v. David G. FLEMMING.
• Court: Maine Supreme Court

Page 448

377 A.2d 448

STATE of Maine v. David G. FLEMMING.

Supreme Judicial Court of Maine.

Sept. 7, 1977.

David M. Cox, Dist. Atty., Paul W. Chaiken, Asst. Dist. Atty., Bangor, for plaintiff.

Paine, Lynch & Weatherbee by Errol K. Paine, Bangor, for defendant.

Before DUFRESNE, C. J., and POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ.

POMEROY, Justice.

Does a person commit the crime of escape (former 17 M.R.S.A. § 1405) when he fails to return from a furlough from a mental health institution where he was committed upon a finding that he was not guilty of a felony by reason of mental disease or defect? That is the issue squarely presented in this case.

David Flemming, the appellee, was found not guilty by reason of mental disease or defect of felonious homicide punishable as murder. As is required by 15 M.R.S.A. § 103 he was committed to the Bangor Mental Health Institute. After failing to return to the institute from a furlough, he was charged with the crime of escape. Upon a proper motion, the indictment charging escape was dismissed for failure to state a crime cognizable under the laws of Maine.

The state seasonably appealed.

We sustain the appeal.

These facts are undisputed: (1) Appellee was confined in a mental health institution under a lawful order of the Superior Court; (2) this order resulted after a finding that he was not guilty of "murder " by reason of mental disease or defect; (3) he did not return to the institution from a 14-day furlough; (4) his absence from the institution was unauthorized.

The statute he is alleged to have violated read in part as follows:

"Whoever, being lawfully detained in any jail or other place of confinement, except the State Prison, breaks or escapes therefrom, or attempts to do so, shall be punished . . . . The sentence to such imprisonment shall not be concurrent with any other sentence then being served or thereafter to be imposed upon such escapee. . . . " (Former 17 M.R.S.A. § 1405) P.L. 1963, c. 77 (Emphasis supplied.)

The predecessor of former 17 M.R.S.A. § 1405 was first enacted in 1915. P.L. 1915, c. 136. The statute as originally enacted specifically required that the confinement be for a criminal offense. The statute in pertinent part read:

"Whoever, being lawfully detained for any criminal offense, in any jail or other place of confinement . . . shall be punished . . . ." P.L. 1915, c. 136.

In Smith v. State, 145 Me. 313, 75 A.2d 538 (1950), this court declared that one of the elements of the crime of escape, as the statute was then written, was that the detention from which the prisoner escaped be for a criminal offense. The court specifically perceived the purpose of the statute as providing

"for the punishment of those who, having been convicted of crime, escape from jail or other place of detention . . . before or after sentence." 145 Me. at 327, 75 A.2d at 545.

The "escape statute" was amended in 1951 resulting in the deletion of the requirement that the detainment be for a criminal offense. P.L. 1951, c. 3. Subsequent to this amendment, the court, in State v. Morton, Me., 293 A.2d 775 (1972), emphasized that the focus now centers on the lawfulness of the detention, not the reason behind the detention. See id., at 776.

In 1950 the court perceived the purpose of this statute as providing punishment for those individuals who, having been convicted of a crime and subsequently detained, escape from such detention. Smith v. State, supra, 145 Me. at 327, 75 A.2d at 545.

In 1951 the legislature eliminated the need to focus on the reason for the detainment. P.L. 1951, c. 3. Though there is no legislative history to guide us, we perceive the purpose of the amendment to expand the scope of the statute to include any individual lawfully detained, be the detention criminal or essentially civil in nature. ¹

As this court said in Hamner v. State, Me., 223 A.2d 532, 535 (1966) "It (the legislature) proceeded from the theory that all should yield obedience to lawful authority."

To escape from lawful confinement in a mental institution after a finding of not guilty by reason of mental disease or defect of the commission of a felony is an evil to be avoided, not merely because of the threat of violence but also because the judicially sanctioned control of such person is frustrated thereby. The focus is not only on the actual restraint on one's freedom but also on the effect that flight will have on the exercise of judicial authority. See In Re State in Interest of M.S., 129 N.J.Super. 61, 322 A.2d 202 (1974), and cases cited therein.

The second issue which we must address is whether the phrase "other place of confinement" would include confinement in a mental health facility. A basic tenet of statutory construction is that words are to be given their ordinary meaning. The statute in question speaks of detainment in a place of confinement. To "detain" is "to hold or keep in or as if in custody . . ." Webster's International Dictionary (3rd ed. 1971). "Confinement" is defined as "the act of confining (to hold within bounds: restrain from exceeding boundaries) or the state of being confined: restraint within limits." Id.

Neither word in its ordinary usage connotes a punitive or penal quality. Giving the words of the statute their plain meaning, there is nothing to suggest that an escape need be from a penal institution to be criminal. As long as an individual is held, subject to judicially ordered restraint on his movement, the statute's plain meaning does not limit the place of such confinement to a penal institution alone.

In short, an escape by an individual confined in a mental health institution as the result of being acquitted of a crime by reason of mental disease or defect is a crime in the State of Maine. Former 17 M.R.S.A. § 1405.

The justice below erred in dismissing the indictment for failure to state a crime cognizable in the State of Maine.

The entry must be:

Appeal sustained.

The case is remanded to the Superior Court for further proceedings not inconsistent with this opinion.

POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ., concurring.

DUFRESNE, C. J., concurring in result.

DUFRESNE, Chief Justice (concurring in result).

David G. Flemming, the defendant, as appears from the caption of the indictment found by the Grand Jury of Penobscot County, is charged with escape in violation of 17 M.R.S.A., § 1405, ¹ a statutory felony.

The indictment recites as the factual basis of the alleged statutory escape that

"on or about the 15th day of August 1975, in the County of Penobscot, State of Maine, DAVID G. FLEMMING, after having been found not guilty by reason of mental disease or defect of the offense of murder, and in pursuance thereof having been committed on the order of Justice James L. Reid at the May Term, 1974, of the Superior Court of Aroostook County to the custody of the Commissioner of Mental Health and Corrections to be placed in an appropriate institution for the mentally ill or the mentally retarded for care and treatment in accordance with Title 15, M.R.S.A., Section 103, dated May 2, 1974, and in accordance with said order said DAVID G. FLEMMING having been placed in the custody of the Superintendent of the Bangor Mental Health Institute by order of said commissioner dated May 2, 1974, which order was then and there in full force and effect, and said DAVID G. FLEMMING having been granted a furlough on August 1, 1975 by one having custody of him, to wit, Joseph Saxl, Superintendent of the Bangor Mental Health Institute, said furlough to commence on August 1, 1975 at said Bangor Mental Health Institute at Bangor and terminate at said Bangor Mental Health Institute on August 14, 1975, whereupon the said DAVID G. FLEMMING did then and there willfully and unlawfully fail to return to the custody of the Superintendent of the Bangor Mental Health Institute and from and out of said custody of the Superintendent of the Bangor Mental Health Institute did escape and go at large."

A Justice of the Superior Court, upon the defendant's motion to dismiss the indictment on the ground that it fails to state a crime cognizable under the laws of the State of Maine, ordered the indictment dismissed, from which order the State has appealed to this Court.

I agree with the majority that the action of the Court below in granting the defendant's motion to dismiss the indictment was incorrect, but, with due respect, I disagree with the majority's conclusion that the failure of an inmate of the Bangor Mental Health Institute, committed to said institution by court order following a finding of not guilty of the offense of murder by reason of mental disease or defect, to return to the custody of the Superintendent of said institution while on authorized furlough is a crime within the scope of 17 M.R.S.A., § 1405, which prohibits escapes from lawful detention "in any jail or other place of confinement, except the State Prison."

The case of In Re State In Interest of M.S., 1974, 129 N.J.Super. 61, 322 A.2d 202, cited by the majority, in which a New Jersey escape statute was held to comprise unsanctioned absences of a juvenile from the juvenile institution where she was placed by court order, is readily distinguishable from the instant case. In the New Jersey case, the Court was interpreting explicit legislation which provided that

"any person imprisoned or detained in a place of confinement, or being in the lawful custody or control of a penal or correctional institution or of an officer or other person, upon any charge, indictment, conviction or sentence for any crime, or upon any writ or process in a civil action or proceeding, or to await extradition, who by force or fraud escapes or attempts to escape from such place of confinement or from such custody or control, or leaves the building or grounds of his place of confinement without the consent of the officer in charge, is guilty of a misdemeanor." (Emphasis added).

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