United States v. Person

• Decision Date: 27 November 1963
• Docket Number: No. 32842-CD.,32842-CD.
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Elroy Eugene PERSON, Defendant.

223 F. Supp. 982

UNITED STATES of America, Plaintiff, v. Elroy Eugene PERSON, Defendant.

No. 32842-CD.

United States District Court S. D. California, Central Division.

November 27, 1963.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Ass't. U. S. Atty., Chief of Criminal Section, Myron Roschko, Ass't. U. S. Atty., Los Angeles, Cal., for plaintiff.

Jordan A. Dreifus, Los Angeles, Cal., for defendant.

BYRNE, District Judge.

On August 17, 1959, Elroy Eugene Person, defendant, pleaded guilty to one count of an indictment charging him with violation of 18 U.S.C. § 500, and in September of that year he was sentenced to the custody of the Attorney General pursuant to the terms of the Federal Youth Corrections Act. 18 U.S.C. § 5017(c). He was then committed to the Federal Correctional Institution at Lompoc, California.

In December of 1962 defendant was transferred from Lompoc to the Federal Pre-Release Guidance Center, commonly known as the "half-way house", with a parole date effective on May 2, 1963.

The officials of the half-way house obtained an outside job for defendant which he was allowed to go to each day, but he was required to return each night.

On January 11, 1963, the defendant was given a five hour night pass so that he could visit his grandmother. He was unaccompanied by any official or other delegate of the Attorney General when he left, but he was to return at 10:30 P. M. that night. While out on this pass defendant visited a restaurant, started drinking beer, and overstayed his leave. Having overstayed his leave he decided not to go back at all.

He was finally arrested on another charge on May 22, 1963. The United States has now filed an indictment against the defendant charging him with violation of the Federal laws which prohibit escape. 18 U.S.C. § 751.¹

The only real issue in this case is whether or not the defendant escaped from "custody".

It has been said that the escape section, like other criminal statutes, should be given a strict construction in favor of the freedom of the citizen. United States v. Brown, 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442 (1947), rehearing denied, 333 U.S. 850, 68 S.Ct. 657, 92 L. Ed. 1132 (1948), and Rutledge v. United States, 146 F.2d 199 (5th Cir. 1944). But that does not mean that it should be given a wooden construction without taking account of the "manifest intent of the lawmakers". Brown, supra, at page 26 of 333 U.S., at page 380 of 68 S. Ct., 92 L.Ed. 442. Thus the old rule of Heydon's Case, 30 Co. 7a, 76 Eng.Rep. 637 (Exchequer 1584) still has force today: discover the mischief for which the law did not provide, and the true reason of the remedy enacted; then, apply the remedy so as to suppress the mischief.

Therefore, the true purpose behind this enactment must be ascertained. The legislative history is not too helpful and the question is made the more difficult by the fact that "custody" is a very elastic concept, which means different things in its many contexts. Thus, it has often been said that a person who is on parole is in custody for many purposes, including the granting of habeas corpus. See e. g., Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); Anderson v. Corall, 263 U.S. 193, 44 S.Ct. 43, 68 L.Ed. 247 (1923); Miller v. Taylor, 313 F.2d 21 (10th Cir. 1962); Taylor v. Squier, 142 F.2d 737 (9th Cir.), cert. denied because case moot, 323 U.S. 755, 65 S.Ct. 82, 89 L.Ed. 604 (1944); and Gould v. Taylor, 153 F.Supp. 71 (M. D.Penn.1957). But it has never been held, and it is not now contended, that a parole violator has escaped from custody for purposes of an escape statute.

In 30 C.J.S. Escape § 5a a good general definition of custody, for these purposes, is given:

"Custody consists in keeping the prisoner either in actual confinement or surrounded by physical force sufficient to restrain him from going at large or obtaining more liberty than the law allows."

As will appear below, there has been some expansion of this idea, but the root core still retains the notion of some, however slight, physical detention.

This concept of custody comports nicely with the common law theory. Thus, in Steere v. Field, 22 Fed.Cas. 1210 (D. R.I.1822), the defendant was a sheriff who was charged with allowing a man, who was imprisoned for debt, to escape. The question was whether the man was out of the custody of the sheriff. There was no showing that the man had actually left the place of his imprisonment, but he had the power to do so. Justice Story said, at page 1225 of 22 Fed.Cas.:

"When a prisoner * * * is permitted to act, not merely as a turnkey, but to have the possession and custody of the keys and all the doors, as well when the goaler is abroad as at home; and to perform all the duties of an assistant, without any restraint whatsoever as to his person either by day or by night, he cannot be justly deemed in any proper sense of the law to be in custody * * *. It is not the mere absence of physical restraint that makes it an escape, but it is that combined with the voluntary yielding up the right of future custody, so that there can be no recaption, if the prisoner leaves the limits."

And in United States v. Hoffman, 13 F.2d 269 (N.D.Ill.1925), affirmed, 13 F.2d 278 (7th Cir.), cert. dismissed, 296 U.S. 666, 57 S.Ct. 755 (1926) the defendants had been ordered by the court to hold certain men in custody. They took the men into jail, but allowed them to leave to go to the dentist for all day visits, and, sometimes, to go out at night without guards. The men always returned. Nevertheless, the court felt that it was perfectly obvious that the defendants had let the men leave their custody.

If this is so — if custody involves some aspect of physical restraint — the reason for making it a serious crime — a felony — becomes apparent. Very serious consequences are apt to accompany any attempt of a man to escape from physical custody. The Supreme Court indicated as much in United States v. Brown, 333 U.S. 18, 68 S.Ct. 376, 92 L.Ed. 442 (1947), rehearing denied, 333 U.S. 850, 68 S.Ct. 657, 92 L.Ed. 1132 (1948), where it said that some of the more serious considerations leading to the adoption of the escape statute were:

"Escapes and attempted escapes from penal institutions or from official custody present a most serious problem of penal discipline. They are often violent, menacing * * * the lives of guards and custodians, and carry in their wake other crimes attendant upon procuring money, weapons and transportation and upon resisting recapture."

This also explains why it is just as much of a felony if a man has only been imprisoned for a misdemeanor; or if he, as it turns out, was imprisoned under invalid and voidable process; or if he has not even been found guilty of a crime but has been arrested and held for an alleged felony, even if the indictment is later quashed or his innocence is proclaimed by a jury. See e. g., Godwin v. United States, 185 F.2d 411 (8th Cir. 1950), rehearing denied, 191 F.2d 932 (8th Cir. 1951); United States v. Jerome, 130 F.2d 514 (2d Cir. 1942), reversed on other grounds, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943); and Aderhold v. Soileau, 67 F.2d 259 (5th Cir. 1933). Men so held are apt to be desperate and the crimes which they commit in escaping may well bear no special relationship to the crime or reason for which they are being held. Sometimes guards are murdered or beaten, Shockley v. United States, 166 F.2d 704 (9th Cir.), cert. denied, 334 U.S. 850, 68 S.Ct. 1502, 92 L.Ed. 1773 (1948), or citizens' property is stolen, Tucker v. United States, 251 F.2d 794 (9th Cir. 1958).

The preclusion of these evils and not the punishment of the failure of a physically free man to return to his jailors would seem to be the purpose of section 751. In this respect the status of the defendant was much like that of a parolee. He did have to return to the half-way house at 10:30 P.M. But then a parolee may have to live at a certain place, be home at a certain time each night, ask permission to own a car or leave the city, and admit a parole officer into his home at any time. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963); and Hyser v. Reed, 115 U.S.App. D.C. 254, 318 F.2d 225 (1963). Really, in terms of the dangers to be precluded by an escape statute both men are in about the same position.

But the Government asserts that the cases which interpret escape statutes have already gone far beyond the bounds of physical custody, and that it would now be an unduly crabbed interpretation to refuse to apply the statute to the defendant. Therefore, I turn to the cases which have applied 18 U.S.C. § 751.

In Johnson v. United States, 313 F.2d 953 (8th Cir. 1963) a prisoner was on the Honor Farm of the United States Penitentiary at Leavenworth and escaped from it. He claimed that because of the nature of the Honor Farm he did not come within section 751. The court characterized this defense as frivolous. There are three factors, however, which make this case a rather poor authority on this point. First, the question of custody had been submitted to a jury and it had found the defendant guilty; second, the court stated absolutely no facts showing the nature of the Honor Farm or the manner in which the defendant escaped; and, finally, the question was not before the court on appeal and the court's comment was the purest kind of dictum.

Two other federal cases are cited as lending support to the government's view, and they will now be discussed.

In Giles v. United States, 157 F.2d 588 (9th Cir. 1946), cert. denied, 331 U.S. 813, 67 S.Ct. 1197, 91 L.Ed. 1832 (1947), defendant was prosecuted under 18 U.S.C. § 753h, which is the predecessor to the present section 751 and precisely the same for our purposes. There the defendant had been sentenced to Alcatraz Penitentiary. On the day of his attempted escape he was not within the prison walls, but was working at a dock in his prison...