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People v. Simmons

OPINION FILED NOVEMBER 20, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JACK D. SIMMONS, APPELLANT.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Calvin R. Stone, Judge, presiding. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 29, 1982.

The defendant, Jack Simmons, was committed to the Illinois Department of Corrections for several felonies. After a time in a high-security prison, he was transferred to the Peoria Community Correctional Center. On November 10, 1977, he was allowed six hours of independent day release to go shopping. An employee of the Correctional Center drove him to a local shopping center and left him, unaccompanied. Simmons was required to call in every two hours; and his brother was to drive him back to the Center. Simmons called once, but not the second time, and never returned to the Center. He was eventually arrested in Davenport, Iowa, prosecuted in the circuit court of Vermilion County for escape, under section 31-6 of the Criminal Code of 1961, as amended (Ill. Rev. Stat. 1977, ch. 38, par. 31-6), and sentenced to three years' imprisonment, to commence at the end of the sentences he was already serving. The appellate court affirmed. 87 Ill. App.3d 18.

The defendant contends that he could not properly be charged under section 31-6 of the Criminal Code of 1961, but only under section 3-6-4(a) of the Unified Code of Corrections, which provides:

"A committed person who escapes or attempts to escape from an institution or facility of the Adult Division [of the Department of Corrections] * * * is guilty of a Class 2 felony. A committed person who fails to return from furlough or from work and day release is guilty of a Class 3 felony." (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4(a).)

Under that section, the defendant maintains, he was guilty only of a Class 3 felony. Instead, he was convicted of a Class 2 felony, under section 31-6, the escape provision of the Criminal Code of 1961, which provides:

"(a) A person convicted of a felony, or charged with the commission of a felony who intentionally escapes from any penal institution commits a Class 2 felony." (Ill. Rev. Stat. 1977, ch. 38, par. 31-6(a).)

Under another paragraph of this section, a person in custody for a misdemeanor commits only a misdemeanor if he escapes. Ill. Rev. Stat. 1977, ch. 38, par. 31-6(b).

The defendant raises three arguments in support of his position that he was charged under the wrong statute: What he did was not an "escape," but only a "failure to return"; the Correctional Center was not a "penal institution"; and the Unified Code of Corrections provides the specific and exclusive penalty for such conduct.

The Unified Code of Corrections defines "escape" as "intentional and unauthorized absence" of a committed person from the custody of the Department. (Ill. Rev. Stat. 1977, ch. 38, par. 1003-1-2(i).) Under that definition, the defendant's conduct was an escape. The definition does not expressly apply outside the Unified Code of Corrections. However, the legislature has given the word a similarly broad meaning in other statutes. Section 13-44.3 of the School Code (Ill. Rev. Stat. 1977, ch. 122, par. 13-44.3) (authorizing educational furloughs from the Department of Corrections) and section 55a(13) of the Civil Administrative Code of Illinois (Ill. Rev. Stat. 1977, ch. 127, par. 55a(13)) (authorizing furloughs of inmates for use in research) both provide that failure to return from furlough or violation of the territorial limits of the furlough shall be deemed an escape from the custody of the Department of Corrections and punished under the statute dealing with escape from the penitentiary (Ill. Rev. Stat. 1971, ch. 108, par. 121, now merged into section 3-6-4 of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, par. 1003-6-4)). We see no reason why conduct that is considered an escape under the Unified Code of Corrections, the School Code, and a statute on the Department of Law Enforcement should not also be an escape for purposes of the Criminal Code of 1961.

A broad meaning for "escape" is consistent with the word's standard legal usage. At common law, the crime of escape required no force, and could be committed, for example, with the connivance of the jailer; it consisted simply of an unlawful departure from custody, or the act of a prisoner in gaining liberty before being released in due course of law. (27 Am.Jur.2d Escape, Prison Breaking, and Rescue § 1 (1966).) And what the defendant did is a criminal escape according to the great weight of authority in other States (Annot., 76 A.L.R.3d 658 (1977)), including those with statutes similar to section 31-6(a) (e.g., Days v. United States (D.C. 1979), 407 A.2d 702; Shifflett v. State (1968), 4 Md. App. 227, 242 A.2d 182; Commonwealth v. Hughes (1973), 364 Mass. 426, 305 N.E.2d 117; State v. Kiggins (1972), 86 S.D. 612, 200 N.W.2d 243). Attributing a broad meaning to "escape" is also consistent with the word's ordinary usage. Webster's Third New International Dictionary, for example, gives as one meaning: "evasion of or deliverance from what confines, limits, or holds * * * specif: an unlawful departure of a prisoner from the limits of his custody esp. when without prison breach * * *."

The defendant was committed to the Department of Corrections and sent to the Peoria Community Correctional Center. However much the limits of his confinement were temporarily enlarged, or the restrictions on his conduct temporarily lessened, he was still legally in the custody of the Center, and had a legal duty to submit to that custody. When he exceeded the lawful limits of his liberty, whether by stepping across the invisible boundary around the shopping center or by standing still while the boundary, with the passage of time, shrank to the physical confines of the Peoria Community Correctional Center itself, he escaped from the Center.

The Peoria Community Correctional Center is a penal institution. (Cf. United States v. Venable (D.C. 1974), 316 A.2d 857 (half-way house).) The defendant was confined there involuntarily as a penalty for a criminal offense; he was not free to leave except temporarily, with special permission, and on special conditions; and while at the Center, he was subject to multifarious restrictions on the personal liberties people ordinarily take for granted.

Section 2-14 of the Criminal Code of 1961 defines a penal institution as "a penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses." (Ill. Rev. Stat. 1977, ch. 38, par. 2-14.) The defendant argues that the listed institutions are all places of more secure confinement than the Peoria Community Correctional Center, and that under the principle of ejusdem generis, an "other institution" must be similarly secure to be a "penal institution." We do not see why the mechanics of confinement have any special significance. The obvious explanation for work-release centers, such as the institution the defendant absconded from, not being expressly mentioned in the definition of "penal institution" is that when the Criminal Code of 1961 was written, there were no such institutions. It was not until 1967 that the legislature authorized halfway houses and work-release centers. (1967 Ill. Laws 619-23.) We think the idea of a penal institution is broad enough to encompass new varieties as they are developed. (See Commonwealth v. Hughes (1973), 364 Mass. 426, 305 N.E.2d 117.) Nor does the temporary release of inmates from the Center detract from its status as a penal institution. Inmates may be furloughed from a penitentiary, unquestionably a penal institution.

If the Center were, as defendant argues, not a penal institution, neither would its counselors be employees of a penal institution. Thus, if an inmate escaped from a counselor's custody by knocking the counselor on the head and sprinting away, that would still not violate section 31-6(a) of the Criminal ...


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