DocketNumber: No. 40063.
Citation Numbers: 199 S.W.2d 393, 355 Mo. 1048
Judges: Conkling
Filed Date: 2/13/1947
Status: Precedential
Modified Date: 10/19/2024
Appellant was tried and convicted in the Circuit Court of Callaway County on the charge of escaping from the custody of officers guarding him on state prison farm No. 2, while out under guard, and while under sentence to and legally confined in the Missouri State Penitentiary for a term less than life. The jury assessed his punishment at imprisonment for two years, and from the judgment and sentence based upon such verdict he appealed.
[1] In his motion for a new trial appellant complained generally of the trial court's action in "giving each and every instruction asked by the state", and in "refusing each and every instruction requested by the defendant". No reason was assigned for claiming the trial court erred in those respects and no effort was made to comply with the statutes. Those assignments are too vague to merit consideration. We have repeatedly ruled that such general assignments of error in a motion for new trial in a criminal case fail to comply with Section 4125 R.S. Mo. 1939, Mo. R.S.A. sec. 4125, and that thereby nothing with respect thereto is preserved for appellate review. State v. West,
[2] Appellant's second assignment of error in his motion for new trial directly challenged the trial court's ruling at the close of all the evidence in refusing to peremptorily instruct the jury to return a verdict of acquittal. By such assignment we must review the evidence. Appellant's brief states that the sole question on this appeal is whether under the intendment of the statute, Section 4307 R.S. Mo. 1939, appellant "could be constructively under guard while not accompanied by a guard at the time of his alleged escape." Research discloses that this precise question is one of first impression in this state.
There is no dispute as to the facts. Appellant was lawfully confined in the Missouri State Penitentiary for a term less than life. For sometime prior to March 30, 1946 appellant was assigned to duty at prison farm No. 2, and, with other prisoners likewise assigned, *Page 1051 answered roll call at the prison farm dormitory at six P.M. on that day. At the close of the day's work at six P.M., after a roll call at the dormitory, the prisoners were given supper, and thereafter a rest period until seven P.M. During such daily rest period the prisoners were permitted to go outside the dormitory for fresh air and relaxation. At seven the prisoners were returned to the dormitory, [395] which was then locked for the night. During the rest period some of the prisoners were allowed to move around outside within certain limits and were often permitted to go down to the river bank at the edge of the prison farm. In some instances prisoners were allowed to go to other parts of the farm, so long as they remained within the boundaries designated by the guards, but to return promptly at seven P.M. The prison farm, boundary to boundary, was constantly under guard as prisoners were aware. At all times the prisoners were under supervision and custody of a prison guard.
On March 30, 1946, after appellant and other prisoners had reported in for six P.M. roll call and had their supper, they went outside the dormitory. Appellant and one Cunningham, a fellow prisoner, went to the river bank about a fourth of a mile from the dormitory. When returning and when about an eighth of a mile from the dormitory they heard the seven o'clock whistle blow. Cunningham testified they were aware of the disciplinary results of being late and feared being returned to the inside of the walls of the penitentiary. They discussed the punishment measures which might be imposed for a late return to the dormitory, and then and there decided to leave the prison farm, did so, and thus escaped.
Later that evening another roll call was made and the absence of Cunningham and appellant was noted. The next day the two men were recaptured by officers at a point some miles north.
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,
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 that the guard did not always go with the prisoners to the river during their six to seven P.M. rest hour, but with the "permission and favor" of the guard, the prisoners sometimes moved about within that narrow territorial limit while the guard remained at or near the dormitory.
Does the mere fact that the guard did not always go, and on this occasion did not actually go, with appellant and Cunningham to the river, a distance of about four hundred forty yards, relieve appellant from being "out under guard" within the intendment of the statute? We think not. Does the mere fact that at the time appellant *Page 1052 and Cunningham decided to and actually did escape, the guard was about two hundred twenty yards away militate against appellant being in the "custody of the officers" within the intendment of the statute? We do not think so.
Under the circumstances shown by the record testimony appellant was a prisoner and in the custody of the guard. Imprisonment or custody may be either by physical restraint, or by a superior force acting as a moral restraint, but there must be an actual or constructive custody. Under these circumstances it has been held that the custody of a prisoner is not abandoned. In State v. McInerney,
The indictment, verdict and judgment are in form and sufficient. The judgment was responsive to the verdict of the jury and the evidence. Defendant had a fair trial and his guilt was clearly established. The judgment of the Circuit Court must be and is hereby affirmed. All concur.
Ex Parte Rody , 348 Mo. 1 ( 1941 )
State v. McInerney , 53 R.I. 203 ( 1933 )
State v. Betterton , 317 Mo. 307 ( 1927 )
State v. Furlong , 291 A.2d 267 ( 1972 )
Urbauer v. State , 744 P.2d 1274 ( 1987 )
State v. King , 372 S.W.2d 857 ( 1963 )
Nicholson v. State , 524 S.W.2d 106 ( 1975 )
State v. Eads , 234 N.W.2d 108 ( 1975 )
Stewart v. State , 275 Md. 258 ( 1975 )
State v. Harmon , 243 S.W.2d 326 ( 1951 )
State v. Turley , 442 S.W.2d 75 ( 1969 )
State v. Peters , 69 N.M. 302 ( 1961 )
State v. Gray , 406 S.W.2d 580 ( 1966 )