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UNITED STATES v. RANDOLPH

May 5, 1958

UNITED STATES OF AMERICA, EX REL. LEONARD J. VRANIAK, PETITIONER,
v.
ROSS V. RANDOLPH, WARDEN, ILLINOIS STATE PENITENTIARY, MENARD BRANCH, MENARD, ILLINOIS, RESPONDENT.



The opinion of the court was delivered by: Platt, Chief Judge.

Leonard J. Vraniak, an inmate of the Illinois State Penitentiary at Menard, Illinois, presents an amended petition for writ of habeas corpus in which he challenges the constitutionality of the following Illinois statute under which he was convicted and sentenced:

    "Whoever conveys into the penitentiary, or into any
  jail or other place of confinement, any disguise,
  instrument, tool, weapon or other thing adapted or
  useful to aid a prisoner in making his escape, with
  intent to facilitate the escape of any prisoner there
  lawfully committed or detained, or by any means
  whatever aids, abets, or assists such prisoner to
  escape or to attempt to escape from any jail, prison,
  or any lawful detention whether such escape is
  effected or attempted or not, or conceals or assists
  any convict after he had escaped, shall upon
  conviction thereof be given the same penalty as the
  prisoner whom he aided or abetted, except that in
  case the prisoner is sentenced to death, the penalty
  for such aid shall be imprisonment for life in the
  penitentiary." Ill.Rev.Stat. (1957), ch. 38, § 228.

Ross v. Randolph, Warden at the Illinois State Penitentiary at Menard, Illinois, by Latham Castle, Attorney General of the State of Illinois, filed an amended return in accordance with the order of this court. The return in substance denied that the relator's constitutional rights have been violated and prayed that the petition be dismissed. Therefore, all facts properly alleged in the petition must be considered as true.

The petition discloses that the relator was sentenced to a term of ten years for habitual larceny by the Cook County Criminal Court on July 29, 1948. While confined in the County Jail awaiting transportation to the penitentiary he engaged in an unlawful attempt to escape on November 28, 1948. Vraniak, Robert Silz, Dominick Albano, Edwin Boyle, Alexander Micele, Nickolas LaCoco, Clarence Hawkins, Robert Lagenour, and Andrew T. Evans were all involved in the attempted escape. Silz was being detained in jail because he had allegedly violated his parole; Albano was awaiting trial on an indictment for armed robbery; Boyle was confined in the jail awaiting trial on an indictment alleging assault with intent to murder; LaCoco was awaiting transportation to the penitentiary to serve a sentence of not less than forty years nor more than fifty years on the charge of burglary; Micele had been convicted of armed robbery and had been sentenced for not less than ten years nor more than twenty years; Hawkins was awaiting transportation to a state institution to serve a sentence of not less than five nor more than ten years for assault with intent to kill; Lagenour had been sentenced to serve not less than five nor more than ten years for larceny and five to ten years for assault with intent to kill; Evans had been sentenced to not less than three nor more than ten years for larceny of an automobile. Vraniak, Silz, Albano, Boyle, Micele, Hawkins, and Lagenour were thereafter indicted for having "wilfully and knowingly aided, abetted and assisted * * * Nickolas LaCoco * * * to attempt to escape from said * * * Jail," in violation of said § 228. Vraniak, Micele, Hawkins, Lagenour and Albano were tried and found guilty of aiding LaCoco in an attempt to escape. LaCoco and Silz entered a plea of guilty to the charge of aiding Evans in an attempt to escape, and each received a sentence of seven to twelve years to run concurrently with the sentence already imposed. Boyle was not tried and Evans was killed during the attempted jail break. Vraniak was sentenced to a term of not less than six nor more than ten years, to run consecutively to the sentence which had already been imposed upon him. Vraniak started serving this sentence on September 15, 1956 after the expiration of his prior sentence.

Relator alleges that he has exhausted all available state remedies as required by 28 U.S.C.A. § 2254. The return does not deny this allegation. A post conviction petition pursuant to Illinois Revised Statutes (1957) ch. 38, §§ 826-832, was denied by the Cook County Criminal Court on May 13, 1953, followed by denial of a writ of error thereon to the Illinois Supreme Court on September 25, 1953. A writ of certiorari to the United States Supreme Court was denied on February 1, 1954. Vraniak v. State of Illinois, 347 U.S. 907, 74 S.Ct. 434, 98 L.Ed. 1065. In this petition under the Post Conviction Act Vraniak raised the question of constitutionality of this statute. On the common law record a writ of error was denied by the Illinois Supreme Court in People v. Vraniak, 5 Ill.2d 384, 125 N.E.2d 513. February 16, 1955, and after rehearing was denied, writ of certiorari by the United States Supreme Court was denied on June 6, 1955. In Illinois the constitutionality of a statute cannot be raised in a petition for writ of habeas corpus. People ex rel. Harris v. Graves, 276 Ill. 350, 114 N.E. 556. Therefore, this court finds that the relator has satisfactorily exhausted all available state remedies.

Vraniak contends that said § 228 violates both the due process clause and the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Section 1 of the Fourteenth Amendment provides, in part, that:

    "No State shall * * * deprive any person of life,
  liberty, or property, without due process of law; nor
  deny to any person within its jurisdiction the equal
  protection of the laws."

Relator contends that § 228 violates the due process clause for two reasons. In the first place he argues that the Illinois Supreme Court in People v. Vraniak, 5 Ill.2d 384, 125 N.E.2d 513, certiorari denied 349 U.S. 963, 75 S.Ct. 895, 99 L.Ed. 1285, ruled that criminal intent is not a necessary element of the offense of aiding a prisoner to escape or attempt to escape. He contends that without criminal intent the statute does not separate innocent from criminal acts, and men of ordinary intelligence must guess at its meaning and differ as to its application; thus the statute is vague and uncertain. In People v. Vraniak, supra, 5 Ill.2d at page 390, 125 N.E.2d at page 517, the court interpreted said § 228 as defining a crime which could be committed in any one of three ways:

    "(1) by conveying an instrument into a place of
  confinement with the intent to facilitate a
  prisoner's escape; (2) by aiding a prisoner to escape
  or attempt to escape; or (3) by concealing or
  assisting a prisoner after he has so escaped."

In that case Vraniak argued that the indictment failed to allege the element of intent, and the court stated at page 390 of 5 Ill.2d, at page 517 of 125 N.E.2d:

    "Since the defendant was here indicted and tried
  for `aiding, abetting, and assisting' in an attempted
  escape, intent was not a material element of the
  crime and need not have been alleged."

It is difficult to understand why the court discussed this argument made by Vraniak inasmuch as he was indicted for "unlawfully, feloniously, wilfully and knowingly" aiding an attempt to escape. Willfully in itself means intentionally, and the Supreme Court of Illinois must have had the common law record before it, including the indictment. The Illinois court from its definition of the three ways in which the crime could be committed indicated that intent was a necessary element of the crime when an instrument was conveyed into a place of confinement. Since intent was not mentioned in the second or third clause of the statute that court held it need not be alleged in an indictment therefor. The court did not hold that aiding an escape or attempt to escape was mala prohibita, nor that a person could be prosecuted for innocent or merely negligent acts. That question was not before it, nor would such an interpretation of the statute be logical. A statute should not be construed to make it repugnant to constitutionality where there is an alternative interpretation which is constitutional. United States v. Standard Brewery, 251 U.S. 210, 220, 40 S.Ct. 139, 64 L.Ed. 229, 235. Also this court need not consider the application of the statute to a person who innocently aids a prisoner to escape, or who conceals or assists a prisoner after he has so escaped. The relator was properly charged in the indictment with aiding a prisoner to attempt to escape, and was found guilty after a jury trial. He was not charged with concealing or assisting a prisoner after he had escaped. Vraniak would indeed find it difficult to maintain that he innocently aided a prisoner to escape in view of the fact that he alleged in his petition that he participated in the escape plot. It must be concluded that § 228 is neither vague, nor does it violate the due process clause in not requiring intent to be alleged in the indictment.

Relator contends, secondly, that since it was not a crime to escape from a county jail in 1948 the Act is unconstitutional because it permits the doing of an act without fear of punishment while punishing those who aid or assist that class. This contention was aptly met in People v. Vraniak, supra, wherein the court held that the statute was not unconstitutional because it punished only the aider and not the escaper, and said at pages 390, 391 of 5 Ill.2d, at page 517 of 125 N.E.2d:

    "By the statute under which defendant was charged,
  the legislature saw fit to provide punishment for the
  person aiding an escape, but not the one aided. When
  it is considered that the danger of escape is
  considerably increased by outside intervention or
  internal collusion by persons other than the
  prisoner, thus rendering inadequate protective
  measures which would otherwise be sufficient, we
  think it only natural and reasonable that the
  legislature made the classification it did in seeking
  to combat the increased dangers of escape. There
  being a substantial rather than a fancied difference
  between the policy to be subserved in punishing ...

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