Before DUFFY, Chief Judge, and SCHNACKENBERG and KNOCH, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
By this appeal, Leonard J. Vraniak seeks reversal of an order of the district court in a habeas corpus proceeding. That court*fn1 sustained the constitutionality of the Aiding Escape Act of Illinois, § 228, ch. 38, Illinois Revised Statutes 1957, which act, Vraniak argues, violates the Fourteenth Amendment to the United States Constitution.
Following his conviction of violation of that act, he was sentenced by the Criminal Court of Cook County, Illinois, to a term of not less than six years nor more than ten years, which sentence he began serving on September 15, 1956, and from which he is now seeking release.
The facts are undisputed. Nickolas LaCoco, Vraniak and several other prisoners were confined in the Cook County, Illinois, jail. LaCoco was awaiting transportation to an Illinois penitentiary to serve a sentence of not less than forty years, nor more than fifty years, on a charge of burglary. Vraniak fashioned openings in the metal partitions of two adjoining cells, People v. Vraniak, 5 Ill.2d 384, 385, 125 N.E.2d 513, because of which he was charged with, and convicted of, aiding LaCoco to attempt to escape. LaCoco and several other prisoners were involved in the attempted escape, in the course of which one of the others was killed.
Vraniak alleges that he has exhausted all available state remedies.*fn2 This has been denied by respondent, who is the warden having his custody.*fn3 However, for the purpose of this opinion, we shall assume that Vraniak has exhausted such remedies.
The Aiding Escape Act provides:
"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."
The italicized portion is applicable to this case.
It is significant that the Illinois court imposed on Vraniak an indeterminate sentence of not less than six years nor more than ten years.It thus construed the penalty provision of the Aiding Escape Act as permitting a maximum sentence less than the maximum imposed upon the aided prisoner. We accept the Illinois court's construction of the Act.*fn4 Such interpretation is, if not analogous to, at least in harmony with the spirit of, the Illinois Indeterminate Sentence Act,*fn5 which is an enlightened statute serving the dual purpose of protection to society and an opportunity for rehabilitation of a convict. In making Vraniak's sentence lighter than LaCoco's, the Illinois court had the tacit approval of the Illinois Supreme Court which, in People v. Nicholson, 401 Ill. 546, 82 N.E.2d 656, pointed out that Nicholson had been sentenced to not less than two years nor more than seven years for a violation of the Aiding Escape Act, and that one Palmer, whom he aided in escaping from a county jail, was under a sentence of not less than one year nor more than twenty years. As to Nicholson, an indeterminate sentence with a maximum sentence less than the maximum sentence imposed upon the escaped convict, was affirmed.
The constitutionality of the Aiding Escape Act is challenged by Vraniak's brief, as follows:
(a) A statute which does not serve the ends of justice, namely vindication of the law, deterrence, and reform, except by happenstance, is unreasonable and arbitrary in application, and violative of the equal protection of the laws guaranteed by the United States Constitution.
(b) A statute wherein punishment is determined solely by reference to the penalty imposed on the escapee, and which does not consider the circumstances of the offense, character and propensities of the offender, and intent to reform, is unreasonable, acts arbitrarily, and is violative of the ...