State v. Tise

• Decision Date: 16 November 1971
• Citation: 283 A.2d 666
• Court: Maine Supreme Court
• Parties: STATE of Maine v. Frederick TISE.

Page 666

283 A.2d 666

STATE of Maine v. Frederick TISE.

Supreme Judicial Court of Maine.

Nov. 16, 1971.

Foahd Saliem, County Atty., Oakland, for plaintiff.

Locke, Campbell & Chapman, by Harry N. Starbranch, Augusta, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WEATHERBEE, Justice.

The sole issue presented by this appeal is whether an administrative punishment imposed for an escape upon a prisoner in a county jail is a constitutional bar to subsequent prosecution for the same escape. We hold that it is not.

On May 4, 1970, Defendant escaped from Kennebec County Jail where he was being lawfully detained. He was apprehended, returned to the jail on May 5, 1970 and locked in a cell in solitary confinement on the order of the Sheriff who said to him (according to Defendant's affidavit executed 24 days later), "You are locked up for escape. You have to be punished so the other inmates can see that you are locked up and they won't try to escape', or words to that effect.' The Defendant was indicted for the escape and on June 1, 1970 he moved that the indictment be dismissed contending that he had already been punished for the escape by undergoing solitary confinement and that Article I, Section 8 of the Constitution of Maine ¹ and the Fifth Amendment of the Constitution of the United States ² bar the State from further prosecution.

The Presiding Justice denied Defendant's motion. Defendant was adjudged guilty of escape in the trial which followed and he now presents this issue to us on appeal.

Petitioner's counsel admits frankly that existing decisional law overwhelmingly holds that criminal prosecution for escape is not barred by prior administrative punishment within the prison for the escape. Our own research leads us to the same conclusion. In the Federal Courts the rule in the Fourth Circuit was tersely stated to be:

'Criminal prosecution for the crime of escape is not prohibited under the double jeopardy clause of the fifth amendment because a convict guilty thereof has upon his recapture been subjected to discipline by the prison authorities for the violation of prison discipline involved.' Patterson v. United States, 183 F.2d 327 (4th Cir. 1950) cert. denied, 340 U.S. 893, 71 S.Ct. 200, 95 L.Ed. 647.

This view was adopted without further comment by the Fifth Circuit in Mullican v. United States, 252 F.2d 398 (5th Cir. 1958). We find unanimity in the other State and Federal Court decisions on this issue. United States v. Apker, 419 F.2d 388 (9th Cir. 1969); State v. Mead, 130 Conn. 106, 32 A.2d 273 (1943); State v. Cahill, 196 Iowa 486, 194 N.W. 191 (1923); Pagliaro v. Cox, 143 F.2d 900 (8th Cir. 1944); People v. Huntley, 112 Mich. 569, 71 N.W. 178 (1897); Yager v. Commonwealth, Ky., 407 S.W.2d 413 (1966); State v. Shoemaker, 273 N.C. 475, 160 S.E.2d 281 (1968); People v. Ford, 175 Cal.App.2d 37, 345 P.2d 354 (1959); State of Vermont v. Lebo, Vt., 282 A.2d 804, (Opinion dated October 5, 1971).

Defendant directs to our attention Inhabitants of Saco v. Wentworth, 37 Me. 165 (1853). There the Defendant had been convicted in the Municipal Court for unlawfully selling liquor. A statute then in effect allowed him an appeal only upon his giving to the municipality a bond for $200 conditioned upon his not violating any of the provisions of the Act during the pendency of his appeal. He gave the bond and later violated the Act and was sued on the bond. The Defendant contended that the right to appeal was necessarily absolute because it necessarily flowed from the right to trial by jury and that the statute which added a condition to that right was thus a violation of Art. I, § 6 of the Constitution of Maine. The Court announced that this particular issue was the only one it proposed to examine, discussed the issue at length and concluded that the statute was in fact an infringement upon the right of trial by jury. The Court then went on to remark that if the City was permitted to recover on the bond, this would present no constitutional barrier to a later criminal prosecution by the State for the sale which had constituted the violation of the conditions of the bond-a situation which the Court appeared to deplore as a violation of the spirit although not the letter of the prohibition against double jeopardy. We do not find that Saco gives any support to the Defendant's position here.

We consider that the purpose of the constitutional interdiction against double jeopardy was aimed to prevent double punishment by judicial action. Jeopardy begins, we said in State v. Slorah (a felony case), 118 Me. 203, 106 A. 768 (1919), when a Defendant is put on trial before a court of competent jurisdiction, upon an indictment sufficient in form and substance to sustain a conviction and the jury has been charged with his deliverance. State v. Shannon, 136 Me. 127, 3 A.2d 899, 120 A.L.R. 1166; State v. Boynton, 143 Me. 313, 62 A.2d 182 (1948). While the...