Slaughter v. State, 629 P.2d 481

Slaughter v. State

629 P.2d 481

Wyo.

1981

Check Treatment

*1 preponderance one of a of the evi- dence.

I would reverse. SLAUGHTER, Appellant

David

(Defendant), Wyoming, Appellee

The STATE of (Plaintiff). Schilling, Appellate Counsel, Michael H. Wyoming Public Program, Defender and No. 5439. Hackl, Sylvia Lee Defender, Asst. Public of Wyoming. Wyoming Public Program, signed Defender the brief on appellant. Sylvia behalf of Lee Junе Hackl, Cheyenne, appeared in oral argu-

ment. Gen.,

John D: Troughton, Atty. Gerald A. Stack, Gen., Deputy Atty. Criminal Divi- sion, Johnson, and Atty. Allen C. Sr. Asst. Gen., signed the brief appellee. on behalf of Johnson, Gen., Allen Atty. C. Asst. Sr. peared in argument. oral RAPER, J., ROSE, C. Before BROWN, THOMAS, JJ. ROONEY RAPER, Justice.

Appellant escape pursu- was convicted of 6-8-301, W.S.1977, ant appeal challenges 1980.1 On his convic- First, tion on two bases. he contends that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍his conduct failed constitute the crime оf jail county 6-8-301, supra, since he was not detained in a when he extricated himself from police custody.

argues judge that the trial in denying erred acquittal, motions for dismissal and instructing defendant did 6-8-301, W.S.1977, jail, Cum.Supp.1980: county Section penitentiary “Any not to exceed person imprisoned confined (3) years, three fined not more than five hun- Wyoming pur- within the state ($500.00), trial, dred dollars or both.” awaiting suant to sentence held in manner in *2 escape. Appellant’s adopted the time of “Our state has the rule of con- second is that an element of the crime struction that a statute cannot be claim extended escape by implication or construction is intent. He asserts that here persons things expressly not judge’s the trial instructions to the jury terms, brought within its nor to cases not require failed to to find that ele- statute; within the letter of the and also presence. appellant ment’s con- that all doubts to the construction are cludes he is entitled to a new trial. resolved in favor of defendant. [Ci- We will affirm. In applying precept this of stat- tations.] 25, 1979, Septеmber On sometime after utory in construction such circumstances m., appellant Slaugh- 11:00 a. as this any ambiguity ought —David to be re- ter —was arrested. He was taken to the solved in favor of defendant. Natrona and booked. Later 556 P.2d at 927. tions.]” afternoon, he was handcuffed and es- But, we do not find ambiguity in the corted “across the corridor to the office of believe that a reasonable per- the District Court.” The handcuffs were reading son the statute would understand it removed, appellant was allowed to con- proscribe escape by attorney verse with his in the district Thus, of the county court’s outer office. He then announced would not matter were actual- that he had to use the restroom. When he ly made from place building other than a hall, proceeded left the office and down the labeled the long so as the de- a deputy paces followed a few behind him. fendant was committed to the deputy appellant then waited for out- at the time. deputy side the restroom door. Soon jurisdictions Other when faced with simi- commotion, heard a he so entered the bath- larly adopted worded statutes have appellant room and discovered that approach. example, same State gone. days appellant Two later was arrest- Me., Campbell, (1974), escape. ed for question provided: statute in Appellant’s trial August commenced on “If a convict sentenced ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the State Pris- August 1980. On on for life or for a limited term years escaping found him or transferred thereto from the Men’s As a result on November Correctional Center under section 808-A was sentenced to a term in Wyoming or committed for safekeeping un- thereto * * * Penitentiary State of not less than one and der Title section escapes years therefrom, one-half nor more than three. forcibly attempts so, No to do may punished credit for was allowed. hard labor for term years, to com- Appellant’s first claim of error re mence completion after the of his former quires 6-8-301, a close examination of § upon sentence or termination of suсh sen- supra. particular, appellant focuses on tence the State Probation and Parole * * language statute’s that “[a]ny person 314 A.2d at fn. 1. * * * any county jail held The Maine Supreme developed facts of the case as follows: * * *.” From this “On July appellant requested, pellant argues that to be granted, permission and was to visit his supra, a mother in Oakland but on condition that defendant must have from the ac- he be escorted official and

tual confines of a return to the Maine Prison the State To position, appellant bolster his points to day. same Pursuant thereto court’s decision in Horn guard journeyеd and the to Oakland (which There it was said: County) is Kennebec where the

4«3 Campbell family During lived. Accordingly, we conclude that a reasona- appellant request- course of this visit the ble reading of supra, does ed, allowed, house, to leave the escape, limit the crime of as therein facilities, plumbing go which lacked defined, only to situations where an individ- beyond out-building few feet an with ual a building is labeled *3 appellant’s toilet facilities. On failure to the Included statute are return, the guard inspected this out- those by which are made individuals building and a found back door from who have been to custody committed the of proceed directly which one could into a the regardless of where the area. A preliminary wooded search of escape actually occurs. appellant’s the pres- areа failed to reveal Therefore we must hold that the district report- ence and the matter promptly was properly court denied the defense ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motions police agencies. ed to various Thе search for acquittal. dismissal and Further we following day was continued the cannot find error in the district court’s However, July results. on giving of Instruction No. 8.2 pellant prison was returned official City from the Waterville The othеr issue we must address concerns (Foot- Jail. prosecution This ensued.” provided: Instruction No. 12 which omitted.) note at 314 A.2d The court then held: “INSTRUCTION NO. recognized com ‘the [have] ARE prisoner

mon “YOU INSTRUCTED that principle law that who when employed the evidence outside the walls shows that volun- of the of is tarily institution confinement con did an act law which the declares to escaped crime, to sidered from the institu be a no it is defеnse he did not [Boyce State,] tion.’ 250 A.2d at 202. know that his act was unlawful or that he rationale, Adopting this it is immaterial believed it to be lawful.” that at the of the the inmate Appellant argues giving this in- engaged authorized, in an even struction the district court erred. The basis activity unauthorized requiring his ab of his contention is that: physical sence from the of confines the “The effect of Instruction Number 12 is institution because we the reach identiсal jury’s to remove from consideration conclusion, namely, his was from any question of the intent of the accused the Maine State Prison to which had alleged at the time of the offense. Court.” 314 A.2d turn, this relieves State of the burden at 403. proving the accused intended to Iowa ruled in State charged.” do the act with which is Eads, Iowa, 234 N.W.2d agree We cannot with appellant’s language, any person that when underlying assumption to the effect any jail” “confined in was used to describe this instruction because the instruction ad who could be convicted of crime of ignorance dressed fact that of the law is escape, it thоse committed to required a defense. It still they whether or not were voluntarily. find act was done stated, located inside As the court general crimes, intent is all that “Obviously prisoner committed to away find, necessary breaks for custodial officer on because if way voluntarily, would be act done was done “the escape though he was never incarcerated.” inference arises that the thereupon defend County Instruction No. 8: confines of the Natrona Jail when he in the lawful but rather that he was ARE “YOU INSTRUCTED that to find the and or the Natrona Jail you charged Defendant personnel it’s time.” [sic] physical need not find that he wаs within the physical that which resulted.” Dora detention of nature. The word ant intended more is “imprisonment” P.2d taken dor detention in a Under Instruction No. the State Bausewine, 40 A.2d establishing that the still had burden (1945) (Rev’d 354 Pa. appellant voluntarily left the of the Cain, 46 A.2d Okl. county jail. Since no alternative instruc (1908); James v. Common 93 P. 974 offered, were we need not decide tions wealth, (1953). “Impris Ky., 259 S.W.2d whether this instruction was the best of all liberty any deprivation onment” is possible merely worlds. We hold that force, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍through through express use of it. was not error physical force. It is de implied threat of Affirmed. McKendree tention without confinement. Christy, Ill.App.2d N.E.2d 380 ROONEY, Justice, concurring. *4 Jones, (1961); v. 211 Pа.Su opinion but I majority I concur with the 366, (1967); per. 236 A.2d 834 Hales v. point specifically more to the lan- want to Corporation, McCrory-McLellan 260 N.C. W.S.1977, guage of § (1963); 225 Warner v. S.E.2d legislature to the fact 19801 and (Rev’d 51, 189 Misc. 68 60 N.Y.S.2d “imprisoned оr confined” to used words 954, 272 A.D. 71 N.Y.S.2d things. two different mean Stubbs, 559); Co. v. 138 Savannah Guano effect, possible, give We must course, (1912). 75 433 And of Ga. S.E. word, every clause and sentence of the it includes an arrest or actual confinemеnt usually ‘or’ is The word penal Mont or detention institution. sense, disjunctive in the and when used Medline, v. 104 F.2d gomery Ward & Co. expressed disjunc- two clauses are (4th Trippel, Cir. McAlmond v. tive, alternatives, generally indicates (1928); P. Cal.Aрp. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Com requiring separate treatment. Dailey Myers, monwealth ex rel. 186 Pa. words, subject In other tions.] (1958); Super. 142 A.2d 381 sepa- each clause should be considered Harrison, D.C.Mass., (1921). 272 F. It rately, requiring the sub- “jail includes the status while on liber also ” jects both be satisfied. Basin “furlough” ties” or from a detention or Cooperative Electric Power v. State Bey, institution. Commonwealth Control, Wyo., 578 P.2d (1972); (1978). (1877); Doyle Boyle, People Kan. 168 presumed legislature And the cannot be Monaco, 54 Misc. N.Y.S. have words or con- “imprisoned used the (1907). fined” in the statute without full intention can question There be no but separate meaning to to ascribe the words deprived liberty at of his “imprisoned” legisla- and “confined.” The subsequent times to his arrest and until he presumed ture cannot be to intend futile escaped during his use of the He restroom. things. Department Yeik v. of Revenue imprisoned during pеriod. Since Taxation, (1979); 595 P.2d 965 “imprisoned” the use of the word Herrera, Wyo., DeHerrera county jail, appel- more has reference to the lant’s was in violation of § Accordingly, it is unnecessary to attach a W.S.1977, Cum.Supp.1980. meaning “constructive” to the words “con jail”

fined in rather than to meaning.

them their literal This because “imprisoned” “imprisoned words county jail” customarily majority opinion

1. See footnote 1 in for text of 6-8-301.