GILES v. UNITED STATES, 157 F.2d 588

HEALY, Circuit Judge. Appellant was convicted of a violation of 18 U.S.C.A. § 75311. The indictment charged that the accused, being a person committed” to the custody of the Attorney General of the United States and his authorized representative, namely, the warden of the United States penitentiary at Alcatraz Island, did on or about July 31, 1945, attempt to escape from custody. The evidence is that on the date named appellant was an inmate of Alcatraz, having been duly committed to the custody of the warden as the representative of the Attorney General.

On the morning of that date, clothed in prison uniform, he was working with other inmates of the penitentiary on a dock at Alcatraz under the general supervision of prison guards. The dock is outside the walls at a distance of some three-eighths of a mile from the prison proper. An army vessel arrived at the dock at 10:15 A. M. and departed a few minutes later, during which time appellant, clad now in the uniform of an army sergeant, contrived to get aboard her from beneath 'the wharf. One of the crew saw the man as he came aboard.

Immediately prior to the docking of this vessel the prison guards counted the prisoners on the dock, and appellant was present. Immediately after the vessel pulled away from the dock the prisoners were again counted and appellant was found missing. A search was at once instituted. From Alcatraz the vessel proceeded to Fort McDowell on Angel Island, about three and a half miles distant. On the arrival of the boat at Fort McDowell appellant was detained, and shortly thereafter prison authorities arrived from Alcatraz and returned him to the penitentiary.

Appellant argues that he was not in custody while going about the chores assigned him on the dock, hence he could not be deemed to have attempted to escape from custody. The reason advanced is that he was not at all times under the observation of one or the other of the prison guards. The argument is without force. The statutory term “custody,” as applied, certainly, to the situation of appellant, is not so narrow and restricted. Appellant likens the case to one where the custodian of a prisoner purposely abandons his charge, leaving him free to go his own way.

There was no abandonment of custody in this instance. Moreover, the question of custody was submitted to the jury as one of fact in an instruction stating that, in order to convict, the evidence must show beyond a reasonable doubt that the accused was actually in custody at the beginning of the alleged attempt to escape. ' [2] In connection with this phase of his defense appellant complains of the denial by the court of his motion to strike part of the answer of a government witness, a prison guard. On cross examination appellant asked this witness: “Now, Mr.

Crowell, in my work on the dock, did you follow me around and keep me under supervision all the time?”; to which inquiry the witness replied, “not myself personally, no, but there were other men that had you under supervision.” While the latter portion of the reply was not strictly responsive, the ruling on the motion to strike, if error at all, was not prejudicial. As already observed, it was not in the circumstances of this case essential to custody that the guard follow the prisoner around and keep him every moment under observation.

It is contended that there was a fatal variance between the allegations of the indictment and the proof. The claim is that a consummated escape was proven, not an attempt to escape as charged; and that appellant is exposed by the verdict to future double jeopardy, that is to say, a conviction for attempted escape will not bar a prosecution for escaping. There is in the federal jurisdiction persuasive and quite' recent authority to the effect that an attempt to violate an analogous statute includes a successful as well as an unsuccessful endeavor. O’Brien v.

United States, 7 Cir., 51 F.2d 193, certiorari denied 284 U.S. 673, 52 S.Ct. 129, 76 L.Ed. 569; Guzik v. United States, 7 Cir., 54 F.2d 618, certiorari denied 285 U. S. 545, 52 S.Ct. 395, 76 L.Ed. 937. No violence is done the statute before us 'by giving it a like

interpretation. For another and different reason, the claim of fatal variance between the charge and the proof is not well taken. On reflection it will be seen that in cases arising under this statute the line of demarcation between an escape and an attempt to escape is often too shadowy to permit of the laying down of absolutes. We are not able to say that on the. evidence here the jury’s verdict of attempted escape was without rational support. The accused’s enterprise substantially aborted. Gauged by ordinary standards of success, it failed of its purpose. The issue was submitted to the jury in an instruction stating that ‘.‘an attempt is

an act tending toward the accomplishment, and done in part execution of the design to commit a crime, exceeding an intent but falling short of an execution of it.” Appellant complains of the instruction only to the extent of insisting that a more elaborate one on the subject proposed by himself should have been given. We think the instruction went as far as the court could fairly go without invading the jury’s province. The statute makes both an escape and an attempt to escape an offense, and the same punishment is prescribed for each.

The general rule is that a prosecution for a minor offense included in a greater wilt bar a prosecution for the greater, if on an indictment for the greater the accused cam be convicted of the lesser. 22 C.J.S.,. Criminal Law, § 283, p. 425; Wharton Cr. Law (12th Ed.), Vol. I, § 394, p. 533; § 395, p. 539. Compare Ex parte Nielsen, Petitioner, 131 U.S. 176, 186-190, 9 S.Ct. 672, 33 L.Ed. 118. The rule undoubtedly, applies here. What has been said disposes of subsidiary-points raised by appellant.

Affirmed. “Any person committed to the custody of the Attorney General or his authorized representative, or who is confined in any penal or correctional institution pursuant to the direction of the Attorney General, or who is in custody by virtue of any process issued under the laws of the United States by any court, judge, or commissioner, or who is in custody of an officer of the United States pursuant to lawful arrest, who escapes or attempts to escape from such custody or institution, shall be guilty of an offense. * * * ” 18 U.S.C.A. § 753h.