4 Mass. App. Ct. 847

November 2, 1976

This appeal is not properly before us, having been dismissed by an order of this court entered on August 22, 1975, and docketed in the Superior Court on September 8, 1975. That dismissal, although entered by the clerk of this court in accordance with the direction of standing order no. 17, was in fact and in law a dismissal by the full court, which alone has the power to dismiss an appeal timely docketed. Mass.R.A.P. 15(c) and 19(c), 365 Mass. 860 , and 868 (1974). Compare Mass.R.A.P. 10(c), as amended, 367 Mass. 919 (1975), and 16(k), 365 Mass. 863 (1974). The power of a single justice to vacate such an order of dismissal is limited by the express provisions of standing order no. 17 to a fourteen-day period from the docketing of the order of dismissal. Assuming, without deciding, that the full court might still vacate the order of dismissal (but see Crocker v. Crocker, 198 Mass. 401, 407-409 [1908]; Powers v. Sturtevant, 200 Mass. 519 [1909]; Boston v. Santosuosso, 308 Mass. 189, 194 [1941]; Joyce v. George W. Prescott Publishing Co. 352 Mass. 767 [1967]), we decline to do so because, apart from the plaintiff's contention having to do with the construction of the Burlington by-law, which we reject, the appeal presents no issue not already decided adversely to the same plaintiff in John Donnelly & Sons, Inc. v. Outdoor Advertising Bd. 369 Mass. 206 (1975). We see nothing in the recently decided cases cited by the plaintiff, and in particular in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. 425 U.S. 748 (1976), and Young v. American Mini Theatres, Inc. 427 U.S. 50 (1976), which cast doubt on the continued validity of the earlier decision against the plaintiff. The order of dismissal entered on August 22, 1975, is to stand.

So ordered.


4 Mass. App. Ct. 847

November 3, 1976

This case comes here on the defendant's exception to the denial of his motion for entry of a finding of not guilty. He was charged in an indictment with having escaped from an officer of the Suffolk County house of correction while being conveyed to the Municipal Court of the Dorchester District. General Laws c. 268, Section 16, as appearing in St. 1973, c. 1062, Section 1, punishes escapes or attempted escapes from "any penal institution or . . . from the custody of any officer thereof." The defendant's argument that the deputy sheriff from whose custody he escaped is not an "officer" of a penal institution is without foundation. Commonwealth v. Antonelli, 345 Mass. 518, 521 (1963). Nor is the fact that the defendant was being held at the Suffolk County jail (Charles Street jail) rather than the Suffolk County house of correction fatal to the Commonwealth's case. If the essential elements of the crime are correctly stated, a defendant may not be acquitted on the ground of variance between allegations and proof unless he is thereby prejudiced in his defense. G. L. c. 277, Section 35. Commonwealth v. Manooshian, 326 Mass. 514, 516 (1950). Commonwealth v. Smith, 368 Mass. 126, 129 (1975). It is clear that an escape from an officer of either a county jail or a house of correction is considered an escape from a penal institution within the

Page 848

purview of G. L. c. 268, Section 16. A "penal institution" is defined in the General Laws as a "correctional facility," which in turn is defined as "any building, enclosure, space or structure used for the custody, control and rehabilitation of committed offenders and of such other persons as may be placed in custody therein in accordance with law." G. L. c. 125, Section 1 (k) and (d), as appearing in St. 1972, c. 777, Section 8. General Laws c. 268, Section 16, has been construed broadly to apply to all escaping prisoners. Commonwealth v. Hughes, 364 Mass. 426, 428 (1973) (escape while on furlough). See Commonwealth v. Reed, 364 Mass. 545 (1974) (escape from State hospital).

Judgment affirmed.