State v. Morton
| Decision Date | 09 August 1972 |
| Citation | 293 A.2d 775 |
| Parties | STATE of Maine v. Thomas MORTON. |
| Court | Maine Supreme Court |
Foahd J. Saliem, County Atty., Augusta, for plaintiff.
Sanborn, Moreshead & Schade by Charles E. Moreshead, Augusta, for defendant.
Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
On June 17, 1970 in the Superior Court of Kennebec County the Defendant was convicted of Uttering a Forged Instrument and on that same day he was sentenced to a term in the Maine State Prison. He filed a notice of appeal the next day and was granted a stay of execution of his sentence on June 25. On July 26 he escaped from the County Jail where he was still being held.
Defendant was apprehended and indicted and convicted by a jury of the crime of escape from jail (17 M.R.S.A. § 1405) and sentenced to a term in Prison for this offense. Through his court appointed attorney, the Defendant has attacked this conviction as invalid for three reasons which we will discuss in order.
1. The Defendant contends that '(t)he Appellant's constitutional rights were violated when he was detained by the Kennebec County Jail without the Sheriff or his duly authorized representative having in his possession an order or document from the Court stating the grounds on which Appellant was being detained at said jail.'
At the time of the Defendant's escape from jail the Sheriff did not have in his possession any document, either original or copy, which constituted an order from the Court directing him to hold the prisoner. The Defendant argues that the Sheriff having no such order in his possession was without authority to detain the Defendant and that, therefore, one of the essential elements of the crime of escape-a lawful detention-was not present. We are convinced that possession of such a document by the Sheriff is not required by due process, our statutes or our Rules.
In Smith, Petr. v. State, 145 Me. 313, 75 A.2d 538 (1950), the Court held that a Defendant charged with escape was entitled to have the lawfulness of his detention for a criminal offense alleged and proved. (The words 'for any criminal offense' have since been deleted from the statute.) The Court found that the indictment for escape failed to allege sufficiently these elements and sustained Smith's appeal from the denial of the writ of error.
In State v. Couture, 156 Me. 231, 163 A.2d 646 (1960), the Court found that the indictment which charged that the Defendant had been sentenced to the Reformatory for Men and was being held in the County Jail pending commitment to the Reformatory failed to allege a lawful detention.
Since Couture and Smith we have decided a series of appeals from convictions for escape in which the appellants attacked the lawfulness of their detentions by seeking to demonstrate that their original convictions were invalid. In Beaulieu v. State, 161 Me. 248, 211 A.2d 290 (1965) we said that whether the original conviction was or was not erroneous, the conviction and commitment under it were in force at the time of escape and the prisoner was therefore lawfully detained. In Hamner v. State, Me., 223 A.2d 532 (1966); Collins v. State, Me., 262 A.2d 443 (1970); Chapman v. State, 250 A.2d 696 (1969) and Wark v. State, Me., 266 A.2d 62 (1970) we reiterated this position saying that the prisoner's right was to test the validity of his original conviction and confinement by judicial procedure but not collaterally in defendant on the escape charge. In Hamner, we said:
Hamner v. State, supra, 223 A.2d at 535.
The Defendant Morton does not here attack his original conviction. 1 His defense to the charge of escape is his contention that he was not lawfully detained in jail because there was no written order from the Court directing his detention there or, if there was such an order, the Sheriff did not have it in his possession.
The Defendant was no more entitled to use self-help to free himself from what he now contends was an unlawful detention than were Hamner, Collins, Chapman and Wark.
However, if Morton had yielded obedience to lawful authority and had attacked his detention pending appeal by habeas corpus, he still could not have succeeded in gaining his freedom on the basis of the non-possession by the jailor of a document ordering his detention.
We have held prior to the adoption of our present Rules of Criminal Procedure that the authority of the jailor to detain the prisoner is not defeated by the fact that the jailor holds a defective mittimus or even by the fact that he has no mittimus at all. The defective mittimus may be corrected or the missing order of commitment may be supplied by presentation of the record of the proceedings. Fuller v. State, Me., 282 A.2d 848 (1971); Austin v. State, 158 Me. 292, 183 A.2d 515 (1962); Duncan, Petr. v. State, 158 Me. 265, 183 A.2d 209 (1962). In Duncan, although the statutes then required that prisoners shall not be received at the Maine State Prison until a warrant of commitment is given to the receiving officer, we held that the failure to allege that such a warrant of commitment had issued did not invalidate the detention.
Duncan, Petr. v. State, supra at 273-274, 183 A.2d at 214.
We recently examined such a situation in Fuller and concluded that under our new Rules of Criminal Procedure, as before their adoption, the lawfulness of the detention is to be determined from the entire record and not from the Order of Commitment alone.
While this issue does not specifically raise the question of whether the Court had validly ordered the Defendant confined, it is clear from the facts that he had been placed in the Sheriff's custody by Court order and he remained there by operation of law until his escape.
Following the Defendant's conviction and sentence on June 17, 1970, this discussion took place:
As I understand it, you have ten days in which to file notice of appeal.'
The following day the Defendant did file a formal notice of appeal which also included a request that the execution of his sentence be stayed, that he be admitted to bail 'as may be set by the Court', that counsel be appointed to represent him on appeal and that the Court order the record prepared at State expense.
The Defendant's trial counsel had evidently prepared on the bottom of the page an order for the Court to sign reading:
'GRANTED: Record ordered printed and a hearing be had on counsel.'
The Justice signed this order, struck out the words 'and a hearing be had on counsel' and inserted in longhand the appointment of the Defendant's present counsel on appeal.
Neither the order nor the docket entries (which reflect appointment of counsel and preparation of the record) mention that bail was fixed pending appeal.
...
To continue reading
Request your trial
-
Helton v. State
...Other courts have held contra: Riley v. State, 16 Conn. 47 (1843); Gallegos v. People, 159 Colo. 379, 411 P.2d 956 (1966); State v. Morton, 293 A.2d 775 (Me.1972); State v. Hendrick, 164 N.W.2d 57 (N.D.1969); Cassady v. State, 247 Ark. 690, 447 S.W.2d 144 (1969); United States v. Nix, 501 F......
-
State v. Nason
...Nason was in official custody at the prison as the indictment alleged. See State v. Jackson, Me., 394 A.2d 769 (1978); State v. Morton, Me., 293 A.2d 775, 778 (1972). B. Possession of Contraband Nason argues that he should have been acquitted because the definition of contraband, incorporat......
-
State v. Flemming
...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 I......
-
State v. Heald
...the intentional unauthorized departure (2) from lawful detention pursuant to lawful authority (3) for a criminal offense. State v. Morton, Me., 293 A.2d 775 (1972); State v. Campbell, Me., 314 A.2d 398 (1974); State v. Holbrook, Me., 318 A.2d 62 The instant indictment addresses these essent......