The State v. Betterton
| Citation | 295 S.W. 545,317 Mo. 307 |
| Decision Date | 03 June 1927 |
| Docket Number | 27781 |
| Parties | The State v. Anthony Betterton, Appellant |
| Court | United States State Supreme Court of Missouri |
Appeal from Cole Circuit Court; Hon. Henry J. Westhues Judge.
Reversed and remanded.
Irwin & Bushman for appellant.
(1) Criminal statutes are to be strictly construed; liberally in favor of the defendant and strictly against the State, both in the charge and in the proof. Implication is not allowed. Where one class of persons is designated as subject to its penalties, all others not mentioned are exonerated. No criminal statute is to be extended or enlarged by judicial construction to embrace offences or persons not strictly within its terms. State v. Bartley, 304 Mo. 58; State v. Reed, 125 Mo. 43; State v. Owens, 268 Mo. 481. (2) The statute under which defendant was convicted does not embrace or contemplate that a convict employed outside the prison walls and not under guard, and departing from his place of employment, has committed a crime. State v. Owens, 268 Mo. 481; State v King, 114 Iowa 413, 87 N.W. 282; Potter v Commonwealth, 250 S.W. 496; Gibson v. State, 38 Ga. 571.
North T. Gentry, Attorney-General, and A. M. Meyer, Special Assistant Attorney-General, for respondent.
(1) The principal of the case of State v. Owens, 268 Mo. 481, cited by the appellant, is not applicable to the case at bar. The statute in that case made the breaking an element of the offense. In addition, there was no lawful authority for the custody of the prisoner which existed in the Owens case, for reasons which sufficiently appear from the reading of that opinion. In the instant case, on the contrary, the statute, in so many words, defines the offense as "without being guilty of breaking such prison." Sec. 3162, R. S. 1919; 21 C. J. 828, par. 14-15. (2) Where a prison break is not made an element of the offense, it is not necessary to prove it, and Instruction 6 correctly states the law of the case. Secs. 3162, 3173, 3160, 3161, 3163, R. S. 1919; State v. Whalen, 98 Mo. 222; 21 C. J. 828, par. 14. (3) The prison farm is a part of the penitentiary and is made such by statute and hence proof of an escape from that place is proof of escape from the confinement in the penitentiary. The placing of a convict on the prison farm for the purpose of working being authorized by a statute, makes the custody lawful and takes the case out of the rule in the Owens case. Secs. 12415, 12417, R. S. 1919; State v. Smitch, 169 N.W. 680; Jenks v. State, 63 Ark. 312, 39 S.W. 361. The fact that the defendant was a "trusty" does not make it impossible for him to escape since he violated the conditions of his trust. Jenks v. State, supra.
Henwood, C. Higbee and Davis, CC., concur.
The appellant was tried and convicted in the Circuit Court of Cole County on the charge of escaping from the penitentiary, without breaking such prison, while there confined for a term less than life. The jury assessed his punishment at imprisonment for two years and six months and from the judgment and sentence based on the verdict he appealed. The charging part of the information reads as follows:
"Comes now Sam S. Haley, Prosecuting Attorney within and for the County of Cole and State of Missouri, for and on behalf of the State of Missouri, and upon his oath of office, informs the court that one Anthony Betterton, on the 22nd day of July, 1924, at the County of Cole, in Jefferson Township and State aforesaid, did unlawfully and feloniously escape from the Missouri State Penitentiary, without breaking such prison, he the said Anthony Betterton, being then and there a person confined in said penitentiary for a term less than life; against the peace and dignity of the State." (Italics ours.)
Section 3162, Revised Statutes 1919, under which the information is drawn, provides that -- "if any person confined in the penitentiary for any term less than life shall escape therefrom without being guilty of breaking such prison, he shall, upon conviction, be punished by imprisonment in the penitentiary for a term not exceeding three years, to commence at the expiration of the original term of imprisonment." (Italics ours.)
There is no dispute as to the facts. Appellant pleaded guilty to a charge of forgery in Jasper County and was sentenced by the circuit court of that county to two years' imprisonment in the penitentiary. On November 7, 1923, he was duly delivered to the warden of the penitentiary at Jefferson City for confinement, but on July 22, 1924, and for sometime prior thereto, he was detained at State Prison Farm No. 3 near Algoa, in Cole County, where he worked as a "milkman" and "slept in one of the bunks." About nine o'clock in the evening of July 22, 1924, he left the Prison Farm without permission and remained out of custody until October 31, 1924, when he was apprehended in Arkansas and brought back to the penitentiary. At the expiration of his original term of imprisonment, on November 30, 1925, he was turned over to the Sheriff of Cole County, and the case now before us on appeal was started by the Prosecuting Attorney of Cole County.
The grounds for reversal now insisted upon by counsel for appellant in their brief were properly presented to the trial court in the motion for new trial, and all of the grounds assigned are directed to the question of variance between the offense charged and the proof tendered.
I. Appellant's contention that there is a fatal variance between the information and the proof must be sustained. In this case we are limited to a consideration of that section of the statute (Sec. 3162) which makes it a felony for "any person confined in the penitentiary for any term less than life to escape therefrom without being guilty of breaking such prison." Manifestly, the facts in this case, above stated, do not fit the charge made by the information and the statute on which the information is based. Keeping pace with the changing conditions in the supervision of offenders against the law and profiting by experience, our General Assembly has defined in separate and distinct sections of the statutes various kinds of escapes of prisoners from different places of confinement and from the lawful custody of officers of the law, with and without force, both before and after conviction. With such ample protection for society in these separate and distinct provisions of the law there should be no inclination on the part of our courts to extend any particular section of the statute beyond its proper limits, and we find no such inclination in the previous rulings of this court. In the case of State v. Owens, 268 Mo. 481, the well-settled rule of construction in this State is briefly but very clearly stated. And Williams, C., speaking for the court, points out that this rule is quite uniform in other jurisdictions. In that case the information was based on Section 4381, Revised Statutes 1909 (Sec. 3163, R. S. 1919), which defines the crime committed by any person confined in any county jail upon conviction for any criminal offense, or held in custody going to such jail, who breaks such prison or custody, whereas the evidence showed that the prisoner escaped from the custody of the street commissioner of the county seat in which the county jail was located and in whose custody he had been placed for work on the streets by the circuit court which tried and sentenced him. In discussing the question of variance the court says:
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State v. Baker
... ... State ... prison farms are part and parcel of the penitentiary. The ... escape of a prisoner from a state prison farm is an offense ... prohibited by and punishable under the statute in question, ... Sec. 4307, R.S. Mo. 1939. State v. Betterton, 317 ... Mo. 307, 295 S.W. 595, Ex parte Rody, 348 Mo. 1, 152 S.W.2d ... While ... the record affirmatively shows that the prisoners were under ... the constant supervision and custody of the guard, and so ... understood that they were, yet the record further discloses ... ...
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State v. Alderman
...inclination on the part of our courts to extend any particular section of the statute beyond its proper limits.' State v. Betterton, 317 Mo. 307, 310, 295 S.W. 545, 546 (1927). Moreover the statute defining the particular offense charged must be construed liberally in favor of the defendant......
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Ex parte Rody
...rules and regulations of that institution have never been posted, as required by Sec. 9041, supra. We are unable to agree that State v. Betterton, supra, and Ex Carney, supra, support petitioner's first contention. On the contrary, the Betterton decision is against him. The concluding lines......