Leroy A. FRAZIER, Appellant, v. UNITED STATES of America, Appellee.
No. 18514.
United States Court of Appeals District of Columbia Circuit.
Argued Sept. 17, 1964. Decided Nov. 19, 1964.
Petition for Rehearing en Banc Denied Jan. 5, 1965.
339 F.2d 745
Fahy, Circuit Judge, dissented.
Mr. Vincent A. Pepper (appointed by this court), Washington, D. C., for appellant.
Mr. Robert W. Healy, Washington, D. C., also entered an appearance for appellant.
Mr. Anthony A. Lapham, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys.,
Before FAHY, WRIGHT and MCGOWAN, Circuit Judges.
J. SKELLY WRIGHT, Circuit Judge.
Appellant was convicted of escaping from the custody of the Attorney General1 while serving a sentence for an earlier conviction of narcotics violations. His escape was from St. Elizabeths Hospital, to which, some five months earlier, he had been transferred from the District of Columbia Jail under
Under
Another point raised by appellant concerns the sufficiency of the Government‘s evidence on the issue of mental responsibility for the crime charged.9 On trial the Government produced a psychiatrist from St. Elizabeths who testified as to the nature of appellant‘s mental disorder. His opinion was that the escape charged was not the product of any mental disease or defect. The appellant offered no evidence of his own on the issue, but moved for acquittal at the close of the Government‘s case.10 The trial court denied the motion and, sitting without a jury, found the appellant mentally responsible and guilty as charged.
Since the evidence is not such as to compel “a reasonable doubt concerning the accused‘s responsibility,”11 the factual finding of the trial court must stand.12
Affirmed.
FAHY, Circuit Judge (dissenting).
After appellant was committed to the custody of the Attorney General for the term of his imprisonment in accordance with
Appellant escaped from St. Elizabeths. But he was not indicted under those provisions of
The Federal Escape Act is of course a criminal statute; and the ordinary meaning of its language above quoted covers only an escape from the physical custody of the Attorney General or an agent or authorized representative of the Attorney General, which did not here occur. There is language in
The court‘s opinion, however, takes the position that appellant escaped from “the custody of the Attorney General,” as charged, upon the theory that he remained in the legal or constructive custody of the Attorney General after his actual or physical custody had been transferred under
The legal custody of the Attorney General or his agent or representative must be either physical or constructive. There is no third legal category. Since appellant when he escaped was not in the physical custody of the Attorney General or his agent or representative he did not escape from the custody of the Attorney General unless from his constructive custody, as the court recognizes. He could be said to have escaped such constructive custody under the present indictment and under the facts of this case only if his original commitment for the term of his imprisonment, under
I see no reason in policy, or in the language used by Congress, to construe the statute otherwise than according to its ordinary meaning. So construed it does not embrace this case. The fact is appellant escaped from the custody of those in charge of him at St. Elizabeths, not from the custody of the Attorney General or an agent of the Attorney General. His confinement at St. Elizabeths under
Congress has not dealt with the problem of an escape by one confined in St. Elizabeths, except insofar as confinement there is by direction of the Attorney General, which is not claimed to have occurred in this case. No doubt Congress has not legislated in this particular area because those ordinarily confined in St. Elizabeths and who escape therefrom are mentally ill.
I would reverse and remand for dismissal of the indictment. Appellant is subject to confinement until the end of his original sentence of 6 to 13 years. This confinement should not be increased by the added sentence of 6 to 18 months for conduct which I believe, with respect, does not constitute a crime based on a theory of constructive custody which either has no application to the facts of this case or which precludes the escape from being an escape at all.
Notes
People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378 (1930), which holds that bills of particulars may be used to supplement an indictment in order to give defendant notice of the precise acts charged, is not in point. Such cases in no way justify instructing a jury on an offense not necessarily included in the offense charged in the indictment. In Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 1050, 8 L.Ed. 2d 240 (1962), the Supreme Court observed that “* * * to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him.”
Set forth in footnote 2 of the court‘s opinion.“Any person while serving sentence of any court of the District of Columbia for crime, in a District of Columbia penal institution, and who, in the opinion of the Director of the Department of Corrections of the District of Columbia, is mentally ill, shall be referred by such Director to the psychiatrist functioning under section 24-106, and if such psychiatrist certifies that the person is mentally ill, this shall be sufficient to authorize the Director to transfer such person to a hospital for the mentally ill to receive care and treatment during the continuance of his mental illness.”
Set forth in footnote 3 of the court‘s opinion.“Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both * * *”
The fact that credit is given for time served at St. Elizabeths has no bearing on custody. This is prescribed by statute. See“All prisoners convicted in the District of Columbia for any offense, * * * shall be committed, for their terms of imprisonment, and to such types of institutions as the court may direct, to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinements where the sentences of all such persons shall be served. The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the District of Columbia Government, the federal government, or otherwise, or whether within or without the District of Columbia. The Attorney General is also authorized to order the transfer of any such person from one institution to another if, in his judgment, it shall be for the well-being of the prisoner or relieve overcrowding or unhealthful conditions in the institution where such prisoner is confined, or for other reasons.”
“When any person confined in a hospital for the mentally ill while serving sentence shall be restored to mental health within the opinion of the superintendent of the hospital, the superintendent shall certify such fact to the Director of the Department of Corrections of the District of Columbia and such certification shall be sufficient to deliver such person to such Director according to his request.”