State v. Furlong

• Decision Date: 30 May 1972
• Docket Number: No. 1017-E,1017-E
• Citation: 110 R.I. 174,291 A.2d 267
• Court: Rhode Island Supreme Court
• Parties: STATE v. Joseph FURLONG. x. &c.

Page 267

291 A.2d 267

110 R.I. 174

STATE v. Joseph FURLONG.

No. 1017-Ex. &c.

Supreme Court of Rhode Island.

May 30, 1972.

Richard J. Israel, Atty. Gen., Donald P. Ryan, Asst. Atty. Gen., Henry Gemma, Jr., Special Asst. Atty. Gen., for plaintiff

Eugene F. Toro, Providence, for defendant.

OPINION

JOSLIN, Justice.

Joseph Furlong was indicted for willfully and feloniously escaping from the custody of the warden and other officers while outside the confines of the minimum custodial unit of the Rhode Island Adult Correctional Institutions (hereinafter referred to as the A.C.I.) in violation of G.L.1956, § 11-25-4.

Prior to trial defendant and the state filed an agreed statement of facts and joined in representing to a Superior Court justice that the question of law arising out of those facts was of such doubt and importance and so affected the merits of the controversy as to require resolution by this court before any further proceedings should be taken in the Superior Court. Accordingly, the trial justice, pursuant to G.L.1956 (1969 Reenactment) § 9-24-27, certified the following question for our determination:

'When an inmate is allowed to engage in the Work Release Program and as a result thereof is permitted to travel to and from his place of employment without custodial supervision and fails to return to the A.C.I. as agreed pursuant to the terms and provisions of his Work Release Program Agreement, does the failure to return to the Adult Correctional Institutions constitute an 'escape' within the meaning of the terms and provisions of the Rhode Island General Laws of 1956, as amended, Title 11, Chapter 25, Section 4?' ¹

The agreed statement discloses that on or about December 27, 1968, defendant, then serving an eighteen-month sentence at the A.C.I., was participating in a work release program ² pursuant to which he was privately employed as a machine operator by a concern doing business in the city of Providence. On that morning he left the A.C.I. and traveled by his own means to his place of employment where he remained until the close of the working day. Instead of then returning to the A.C.I. by 6:30 p.m. as required by his work release agreement, he overstayed his leave, became intoxicated and remained in that condition until the afternoon of December 29, when, at about 2:30 p.m., he called the prison officials and requested them to arrange for his return to the institution. After returning to the A.C.I. he was indicted for violating G.L.1956, § 11-25-4. Where pertinent that statute provides that:

'Every prisoner confined in the medium or minimum custodial unit of the adult correctional institutions or in the custody of the warden or other officer while outside the confines of the custodial unit, who * * * shall escape, or attempt to effect an escape, shall be fined not more than five hundred dollars ($500) or shall be sentenced by the court to a term of imprisonment in the adult correctional institutions for not more than five (5) years.'

The pivotal issue is whether defendant was, within the contemplation of § 11-25-4, 'in the custody of the warden or other officer' on December 27, 1968 when he failed to return to the place of his confinement by 6:30 p.m.

The principal thrust of defendant's argument, as we understand it, is that the meaning of the word 'custody' will vary depending upon the context in which it appears, and that as used in our escape statute it contemplates the exercise of actual physical restraint sufficient to prevent a prisoner from going at large. To support that narrow construction, defendant leans heavily on United States v. Person, 223 F.Supp. 982 (S.D.Cal.1963). There an inmate of a half-way house who failed to return to his place of confinement at the expiration of a five-hour pass was charged with a violation of the federal escape statute. ³ The court rejected any notion that Congress had intended in that statute to punish a physically free prisoner for failing to return voluntarily to his jailer. Instead, it construed Congress' true purpose as being to deter desperate men from making dangerous prison breaks, and it reasoned that under an enactment so purposed there could be no escape unless the prisoner, when he made his getaway, was subject to at least some slight aspect of physical detention. Id. at 985.

The question, then, is whether our statute, which substantially resembles that construed in Person is broad enough to comprehend an unrestrained prisoner's escape from the place where he worked. That question was answered in this state almost forty years ago in State v. McInerney, 53 R.I. 203, 165 A. 433 (1933). There the defendant 'walked away' from a group of prisoners who, while under the supervision of a prison guard, were engaged in farming activities outside the prison walls. He defended against the charge that he had escaped by arguing that the prison guard had abandoned his custody at the time he absconded. The court rejected that argument saying that a person sentenced to confinement is in contemplation of law in prison until he serves his term and that '(w)herever a prisoner is assigned to work, he is, until discharged, still in custody, and, if he leaves such custody, he becomes guilty of escaping.' Id. at 205, 165 A. at 434.

The McInerney approach coincides generally with the views of those authorities which say that an unattended prisoner escapes from custody even though he may have made his getaway while performing labor outside the prison walls or while at large on errands. United States v. Rudinsky, 439 F.2d 1074 (6th Cir. 1971); McCullough v. United States, 369 F.2d 548 (8th Cir. 1966); Cassady v. State, 247 Ark. 690, 447 S.W.2d 144 (1969); Boyce v. State, 250 A.2d 200, 202 (Me.1969); State v. Baker, 355 Mo. 1048, 199 S.W.2d 393 (1947); Perkins, Criminal Law 503 (2d ed. 1969); 3 Wharton's Criminal Law and Prcedure § 1373 at 765 (1957). See State v. Jones, 266 Minn. 526, 529, 124 N.W.2d 729, 731 (1963).

When we apply the view of...