Commonwealth v. Faulkner ( 1979 )

The defendant appeals (G. L. c. 278, §§ 33A-33G) from his conviction after a jury-waived trial of violating G. L. c. 268, § 16, as appearing in St. 1973, c. 1062, § 1, which provides that “[a] prisoner who escapes ... from any penal institution... shall be punished____” According to the stipulation of facts, on September 27,1978, the defendant was being held in lieu of bail at the Billerica house of correction. At approximately 7:45 p.m. on that date the defendant and two other inmates escaped from the jail by cutting through the bars on a cell window and lowering themselves to the ground with a rope. The three then went over the facility’s fence and left the grounds. They were later apprehended and returned to the facility.

Kenneth I. Goodman for the defendant. Richard E. Brody, Assistant District Attorney, for the Commonwealth.

The sole issue on appeal is whether G. L. c. 268, § 16, applies to a pretrial detainee held in lieu of bail who escapes from a county jail. We conclude that it does. The defendant contends that c. 268, § 16, is not applicable to the facts in this case because a jail is not a “penal institution” within the meaning of that statute and he is not a “prisoner.” These arguments are foreclosed by this court’s decision in Commonwealth v. Pettijohn, 4 Mass. App. Ct. 847, 847-848 (1976), in which we stated, “It is clear that an escape from ... either a county jail or a house of correction is considered an escape from a penal institution within the purview of G. L. c. 268, § 16.” See G. L. c. 125, § l(fe), (d) and (m), as appearing in St. 1972, c. 777, § 8. In light of this and other decisions of the Massachusetts courts construing G. L. c. 268, § 16, broadly to apply to all escaping prisoners (see Commonwealth v. Hughes, 364 Mass. 426, 428-431 [1973]; Commonwealth v. Reed, 364 Mass. 545, 547-548 [1974]; Commonwealth v. Sneed, 3 Mass. App. Ct. 33, 33-34 [1975]), we are not persuaded by the defendant’s arguments urging us to distinguish, for purposes of the escape statute, between prisoners who have been convicted and sentenced to a correctional facility and individuals awaiting trial who are placed in custody in a correctional facility in accordance with law.

Judgment affirmed.