State v. McInerney, 7309.

• Decision Date: 24 March 1933
• Docket Number: No. 7309.,7309.
• Citation: 165 A. 433
• Parties: STATE v. McINERNEY.
• Court: Rhode Island Supreme Court

165 A. 433

STATE

v. McINERNEY.

No. 7309.

Supreme Court of Rhode Island.

March 24, 1933.

Exceptions from Superior Court, Providence and Bristol Counties; Jeremiah E. O'Connell, Judge.

Stephen J. McInerney, alias, was convicted of escaping from the custody of the jailer and keeper of a county jail, and he brings exceptions.

Exceptions overruled, and case remitted.

John P. Hartigan, Atty. Gen., and John H. Nolan and Michael De Ciantis, Asst. Attys. Gen., for the State.

Joseph C. Cawley and John O. Pastore, both of Providence, for defendant.

HAHN, Justice.

This is an indictment charging that the defendant, in violation of Gen. Laws 1923, c. 394, § 13, as amended by Pub. Laws 1931, c. 1791, "wilfully, unlawfully and feloniously from and out of the custody of the jailer and keeper of the Providence County Jail * * * against the will and without the license of said jailer and keeper did escape and go at large." After a verdict of guilty, the case is before us on defendant's exceptions to the denial of his motion for a new trial, to portions of the charge to the jury, and to the refusal to charge as requested.

The facts are as follows: About 4 o'clock a. m. on August 7, 1932, defendant and eleven other prisoners of the Providence county jail were conducted from the jail building to the prison lot for the purpose of driving a herd of cows into the institution barn, milking and feeding them, and doing other work under supervision of a guard who walked about among the men and occasionally assisted them. At 6:15 a. m. the guard directed them in driving the herd back to pasture, after which he discovered that defendant was missing.

The only disputed fact is as to the time the escape took place. The guard testified that he last saw defendant at 6:15. Defendant testified that he "walked away" at 5:15. His counsel contends that the guard did not discover the escape for an hour after it was effected, and that he had thereby abandoned his custody. This is one of the grounds relied upon by defendant in his exception to the denial of his motion for a new trial.

This contention is without merit. The time of escape is immaterial. Failure of the guard to notice the escape for five minutes or a longer period would not constitute an abandonment of his custody, for custody of a prisoner is not abandoned until his sentence is completed or he is pardoned and receives his discharge therefrom. Gen. Laws 1923, c. 373, § 6, provides that the keeper of the jail in the county of Providence "shall receive into his custody and safely keep in said jail, every person who shall be committed thereto, until he shall be legally discharged therefrom." Furthermore, it is well settled that, whatever may be the conduct of the jailer, the prisoner cannot shield himself therewith from the charge of escaping custody if he leaves the place of his confinement. Riley v. State, 16 Conn. 47; State v. Wright, 81 Vt. 281, 69 A. 761; Saylor v. Com., 122 Ky. 776, 93 S. W. 48, 49; Jenks v. State, 63 Ark. 312, 39 S. W. 361.

As a further ground of exception to the denial of said motion, defendant contends that, as his escape was not from the jail building, it is not covered by the language in the statute and indictment, "while * * * undergoing sentence in any county jail."

By virtue of said chapter 373, § 6, the prisoner is committed to the custody of the warden who, by sections 4 and 5, is empowered to appoint assistants to exercise his authority. By Gen. Laws 1923, c. 411, § 14, he is...