State v. Hayes

• Decision Date: 06 October 1958
• Docket Number: No. A--437,A--437
• Citation: 145 A.2d 28,52 N.J.Super. 178
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph HAYES, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 178

52 N.J.Super. 178

145 A.2d 28

STATE of New Jersey, Plaintiff-Respondent, v. Joseph HAYES, Defendant-Appellant.

No. A--437.

Superior Court of New Jersey Appellate Division.

Argued Sept. 8, 1958.

Decided Oct. 6, 1958.

Ernest Fasano, Red Bank, for appellant.

Solomon Lautman, First Asst. Pros., Asbury Park, for respondent (Vincent P. Keuper, Monmouth County Pros., Asbury Park, attorney).

Before Judges GOLDMANN, CONFORD and FREUND.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Defendant was tried and convicted in the Monmouth County Court on an indictment charging him with the crime of escape, N.J.S. 2A:104--6, N.J.S.A., and was subsequently sentenced to a State Prison term of from one to three years. He appeals, claiming that he could not be guilty of the crime charged because at the time of his escape be was being illegally confined in violation of N.J.S. 2A:4--33, N.J.S.A.

The facts are undisputed. On September 20, 1957 defendant was arrested and charged with breaking and entering and with larceny. The following day the Middletown Township magistrate committed him to the Monmouth County Jail where he was confined in an area known as Bull Pen No. 2. On September 22 it was discovered that defendant was only 17 years old. The magistrate therefore recommitted him, this time to the Monmouth County Juvenile Detention Center. Defendant was thereupon moved to Bull Pen No. 1 which, according to the sheriff, had verbally been designated as the juvenile detention center by someone in the Department of Institutions and Agencies in the course of a telephone conversation with him. There was, however, no official order designating that pen as the center. Bull Pen No. 1 housed some 20 to 22 prisoners at that time, most of them adults who had been convicted of crime or were awaiting trial on criminal charges.

There is nothing in the record or the briefs to indicate that when defendant was moved to Bull Pen No. 1 he knew that this confinement violated N.J.S. 2A:4--33, N.J.S.A., which reads:

'A child between the ages of 16 and 18 years coming within the provisions of this chapter shall not be placed in any prison, jail, lockup or police station unless there shall be no other safe and suitable place for his detention, and it is necessary for his protection or the protection of the public, and unless when so placed in a jail, lockup or police station it shall be in a segregated section of such premises where the said child cannot have contact with any adult convicted of crime or under arrest. * * *' Defendant made his escape from the pen on October 3, 1957. We are informed that he did so by utilizing tools brought in to him by visiting relatives and that he had the men in the pen sing to mask the noise of his operations.

It is clear that defendant's confinement in Bull Pen No. 1 violated the quoted statute. The fact that the sheriff had the oral approval of the state agency to use this pen as a juvenile detention center is immaterial. Indeed, the State does not claim that any agency order purported to, nor could it possibly in the face of the statute, authorize defendant's confinement with adult offenders. The State's contention that there was 'no other safe and suitable place' for the detention, and that defendant's confinement was for 'the protection of the public' and therefore the statute was not violated, is specious. It disregards the conjunctive requirement that the minor be segregated and not 'have contact with any adult convicted of crime or under arrest.'

The State suggests that defendant's confinement may have been proper under R.S. 30:8--8, N.J.S.A. That statute directs freeholder boards to arrange places of confinement so as to segregate persons under the age of 18, and goes on to provide:

'* * * If it is impractical to so arrange the building used for such (confinement) purposes, such boards of chosen freeholders shall provide such places as shall be necessary to accomplish the purposes of this section.'

In the first place, the State does not attempt to show the impracticability of accomplishing the purposes of R.S. 30:8--8, N.J.S.A., or of any real attempt to do so. Secondly, as we read this statute, it actually reinforces the mandate of N.J.S. 2A:4--33, N.J.S.A., by directing freeholder boards to keep persons under 18 'separate and apart from and so that no communication takes place between them and other persons above such age confined therein on a charge or conviction of crime.'

The single point raised by defendant on this appeal is that he had a right to escape because, under N.J.S. 2A:104--6, N.J.S.A. his confinement was not 'lawful.' This statute reads:

'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, * * * who by force or fraud escapes or attempts to escape from such place of confinement or from such custody or control, * * * is guilty of a misdemeanor.'

Relying on the word 'lawful' in the second clause, defendant attempts to spell out a legislative intent to leave unpunished an escape from a confinement that is not 'lawful.' It seems almost certain that the Legislature never considered the question, so that any conclusion as to its actual intent would be purely conjectural. The Ohio Court of Appeals, faced with a similar question, elected to read into the statute the requirement of 'lawful' confinement, State v. Ferguson, 100 Ohio App. 191, 135 N.E.2d 884 (1955). But see, Bayless v. United States, 141 F.2d 578 (9 Cir., 1944), certiorari denied 322 U.S. 748, 64 S.Ct. 1157, 88 L.Ed. 1580 (1944), applying the Expressio unius est exclusio alterius rule in construing the federal escape statute, 18 U.S.C.A. § 753h.

The question presented for resolution appears to be a novel one in this jurisdiction. Defendant cites State v. Williams, 10 N.J. Law J. 293 (Cir.Ct.1887) (not officially reported). The single paragraph opinion reveals that defendant had been convicted under the Disorderly Act. He was charged with escape and argued that the commitment was defective in that it did not state that he had been convicted, but simply stood 'charged' with the offense. The court discharged defendant, holding that 'if the commitment was illegal, the defendant could not be punished for embracing an opportunity to escape.' The rationale of this determination is not set out, nor are authorities cited. The trial judge distinguished the Williams case because it related to an illegal commitment rather than to an illegal confinement. Defendant, incidentally, makes no claim that his Commitment to the Monmouth County Jail was illegal.

Nor is In re Rigg, 95 N.J.Eq. 341, 123 A. 243 (Ch.1924), also cited by defendant, persuasive here. The court there held that 'The deliverance of a person who is lawfully imprisoned, out of prison, before such person is entitled to such deliverance is an escape.' The court was not considering the legality of the confinement as bearing upon the possible criminal conduct of the prisoner in escaping; rather, it was dealing with the alleged contempt of a solicitor in advising the sheriff to bring the prisoner into court without first delivering to him personally the writ of Habeas corpus.

Defendant relies upon the language in the annotation to Kelley v. Meyers, 124 Or. 322, 263 P. 903, 56 A.L.R. 661 (Sup.Ct.1928), appearing in 56 A.L.R. 666, at page 667 (1928), that

'The very foundation of the crime of escape is the lawful confinement of the prisoner; and therefore it is a general and well-established rule that, when the imprisonment is unlawful, and is itself a crime against the law, the reason which makes flight from prison an offense does not exist. In such a case the right to liberty is absolute, and he who regains it is not guilty of the technical offense of escape. * * *'

The same language is used in 19 Am.Jur., Escape, § 10, p. 365 (1939). However, a review of the cases cited in the annotation and its supplement, 163 A.L.R. 1137 (1946) not only shows a split of authority but leads to the conclusion that the broad language of the annotation does not have substantial support.

Contrast the following statement of the law which appears in the general treatment of the subject found in 30 C.J.S., Escape, § 5(c)(2), p. 1145 (1942):

'It is not a crime to depart from custody for which there is no authority, as where the court exceeds its jurisdiction or where one is held on a contingent warrant on failure of the contingency or where a copy of the recognizance is absent, on the surrender of a prisoner by the bail, or where a certified copy of the judgment and order of the court is absent, or where a written 'capias' is absent and this, although the warrant under which the prisoner is arrested is fair on its face. Custody is not, however, rendered unlawful because defendant has been arrested and confined without a warrant, on suspicion of a felony; or because of a mere informality in process, such as the failure of a warrant to state the county in which an offense was committed; or because of the absence of a commitment.

There is authority that a prisoner whose sentence is irregular or voidable may not for that reason defy his guards and run away, but must take other means to test the question. Thus an escape is not justified because the statute under which the prisoner has been convicted is unconstitutional; and, although he is confined under a sentence which would be reversed or set aside if the proper procedure were followed an unlawful departure from confinement constitutes an escape.' (Citing cases to the text in the footnotes and 1958 Supplement.)

See also 30 C.J.S., Escape, § 10, p. 1147, dealing with the nature and lawfulness of the custody where there is an attempt to escape and § 15, p. 1148, same subject matter, where there is a prison breach. And see 2...