State v. Schaller, S

• Citation: 233 N.W.2d 416,70 Wis.2d 107
• Decision Date: 30 September 1975
• Docket Number: No. S,S
• Parties: STATE of Wisconsin, Plaintiff-in-Error, v. David Allan SCHALLER, Defendant-in-Error. tate 176.
• Court: Wisconsin Supreme Court

Page 416

233 N.W.2d 416

70 Wis.2d 107

STATE of Wisconsin, Plaintiff-in-Error, v. David Allan SCHALLER, Defendant-in-Error.

No. State 176.

Supreme Court of Wisconsin.

Sept. 30, 1975.

David Allan Schaller, the defendant, was charged with having on April 3, 1974 intentionally escaped 'from the custody of the La Crosse County Sheriff, after being lawfully convicted of, but not sentenced for, a felony, to-wit: Burglary, contrary to Sec. 946.42(2)(c), Stats.' A trial by jury resulted in a guilty verdict on May 29, 1974. Judgment of conviction was entered on June 17, 1974, with a one year prison sentence being stayed in favor of probation for one year.

On September 12, 1974, in response to a motion and hearing, the trial court signed an order granting a new trial 'in the interests of justice.' A writ of error to review this order was issued on September 10, 1974.

Defendant Schaller was present in the La Crosse County jail pursuant to Sec. 973.09(4), Stats. Sentence on a burglary conviction had been withheld in favor of such probation with conditions. After being released for the purpose of purchasing work clothes on April 2, 1974, the defendant did not return to the jail until almost twenty-four hours later. He also had not been at his place of employment during this period, nor during the previous day. His absences were unexplained. On these facts, a jury returned a finding of guilt for a violation of Sec. 946.42(2)(c), Stats.:

'(2) Any person in custody under any of the following circumstances who intentionally escapes from custody may be fined not more $500 or imprisoned not more than one year or both:

'. . .

'(c) Lawfully charged with or convicted of, but not sentenced for, a felony; . . .'

The terms of the offense are explained by Sec. 946.42(5), Stats.:

'(5) In this section:

'(a) 'Escape' means to leave in any manner without lawful permission or authority;

'(b) 'Custody' includes without limitation actual custody of an institution or of a peace officer or institution guard and constructive custody of prisoners temporarily outside the institution whether for the purpose of work or medical care or otherwise. Under s. 56.08(6) it means, without limitation, that of the sheriff of the county to which the prisoner was transferred after conviction. It does not include the custody of a probationer or parolee by the department of health and social services or a probation or parole officer unless the prisoner is in actual custody after revocation of his probation or parole or to enforce discipline or to prevent him from absconding, . . .' (emphasis supplied)

The trial court granted a new trial in the interests of justice, apparently believing that the precise facts fell within the exception contained in the last sentence of Sec. 946.42(5)(b), Stats. The trial judge in his memorandum decision noted he would grant dismissal of the charges if the same facts were adduced at the retrial. The state on this writ disputes such an interpretation and claims error in the trial court's reliance on it as a basis for a new trial.

Victor A. Miller, Atty. Gen., James H. McDermott, Asst. Atty. Gen., Madison, for plaintiff-in-error.

Howard B. Eisenberg, State Public Defender, Madison, for defendant-in-error.

HANLEY, Justice.

The sole issue presented for review is whether a probationer confined in a county jail as a condition of probation may be convicted of escape under Sec. 946.42, Stats.

The plaintiff in error, the state, asserts that the qualifications embodied by the last sentence of the definition of 'custody' in Sec. 946.42(5)(b), Stats., do not negate the applicability of the prior sentences. We do not agree. While agreeing with the conclusion that these subunits are not necessarily mutually exclusive, the facts of defendant Schaller's elopement do fall within an exception to the 'custody' required by the statute. This result is reached by virtue of two important rules of statutory construction. First, apparently conflicting provisions of a statute are to be construed so as to harmonize, and thus give effect to the leading idea behind the statute. State v. Gould (1973), 56 Wis.2d 808, 812, 202 N.W.2d 903. Second, penal statutes are to be strictly construed in favor of the accused. State ex rel. Gaynon v. Krueger (1966), 31 Wis.2d 609, 619, 143 N.W.2d 437.

The legislature chose to restrict 'custody' by definition, rather than import the usage of its general meaning. Such a legally defined term must be given effect. See Prue v. State (1974), 63 Wis.2d 109, 116, 216 N.W.2d 43. Within the framework of such definition, a distinction is drawn, although 'without limitation' between 'actual custody' of an institution, peace officer or institutional guard and 'constructive custody' of prisoners outside the institution. Black's Law Dictionary, p. 460, in considering 'custody' offers further explanation of the two terms: the former may be 'actual imprisonment or physical detention' while the latter is in the nature of 'mere power, legal or physical, of imprisoning.' 'Custody' under certain circumstances is further developed, especially that custody arising under Sec. 973.10, Stats.:

'(1) A sentence of probation shall have the effect of placing the defendant in the custody of the department and shall subject him to the control of the department under conditions set by the court and rules and regulations established by the department for the supervision of probationers and parolees.

'. . .'

Only 'actual custody' of probationers under the three circumstances of Sec. 946.42(5), Stats., none of which are claimed to apply here, constitutes the 'custody' contemplated as a predicate to an escape.

Defendant, as a probationer under Sec. 973.09(4), Stats., was within the general custody of the H&SS Department. The recent case of Prue v. State, supra, reiterated that incarceration as a condition of probation is not a sentence and does not transform probation into a sentence. These propositions do not, however, direct the conclusion that Schaller's conformity to the custody of one caretaker automatically precludes the possibility of his being in custody to another.

Apparently, the trial court concluded that the 'custody' provisions were mutually exclusive. Nothing within the statutory language directs this interpretation. Such a construction could lead to absurd applications which is to be avoided. State v. Gould, supra. The most obvious example would occur at an escape of a probationer after a lawful arrest for the commission of a separate crime. Sec. 946.42(1)(a), (2)(a), Stats. See Dobs v. State (1970), 47 Wis.2d 20, 176 N.W.2d 289. It would be unreasonable to suggest that the dual 'custody' prevents prosecution for such an escape.

In the instant case the dual 'custody' arose from the same occurrence, i.e., the incarceration as a condition of probation. In this situation, there is justification for assuming that only one custody is operative in determining whether an escape occurred. This decision must be made on the basis of the statutes in question. The...