8 Mass. App. Ct. 936

November 29, 1979

The plaintiff, the former husband of the defendant, brought suit to redeem certain real estate pursuant to G. L. c. 236, Section 33, which had been sold to the defendant (wife) at a sheriff's sale. The wife appeals from a judgment ordering her to reconvey the property upon payment by the plaintiff of the amount of the underlying debt with interest, but which does not require the plaintiff to pay taxes and expenses of the property.

The judge's findings are supported by the evidence. The findings as supplemented by our examination of the transcript as appearing in the record, see Zuckerman v. Blakeley, 3 Mass. App. Ct. 685 , 687 (1975), indicate that the plaintiff made good faith efforts to redeem the land in accordance with all the applicable provisions of G. L. c. 236, Section 33, including the payment of reasonable expenses, that the wife's actions in refusing to convey were not "in good faith," and that the wife throughout attempted to thwart the plaintiff's right to redeem.

Even assuming, as is not the case, that the wife's conduct did not excuse the plaintiff's failure, if any, to comply with the requirements of Section 33, the wife has not provided this court with an appendix sufficient to support her claim that any additional payments were due and that there was error in the judge's failure to require the payment of expenses. The appendix does not include any of the exhibits relating to expenses, see Kunen v. First Agricultural Natl. Bank, 6 Mass. App. Ct. 684 (1978), and the wife's testimony on that subject as contained in the transcript is totally inconclusive. Moreover, the testimony shows that the property produced considerable amounts of income which under Section 33 are chargeable to the wife and are deductible from the amount of the expenses.

Judgment affirmed.


8 Mass. App. Ct. 936

November 30, 1979

The defendant appeals (G. L. c. 278, Sections 33A-33G) from his conviction after a jury-waived trial of violating G. L. c. 268, Section 16, as appearing in St. 1973, c. 1062, Section 1, which provides that "[a] prisoner who escapes . . . from any penal institution . . . shall be punished. . . ." According to the stipulation of facts, on September 27, 1978, the defendant was being held in lieu of bail at the Billerica house of correction. At approximately 7:45 P.M. on that date the defendant and two other inmates escaped from the jail by cutting through the bars on a cell window and lowering themselves to the ground with a rope. The three then went over the facility's fence and left the grounds. They were later apprehended and returned to the facility.

Page 937

The sole issue on appeal is whether G. L. c. 268, Section 16, applies to a pretrial detainee held in lieu of bail who escapes from a county jail. We conclude that it does. The defendant contends that c. 268, Section 16, is not applicable to the facts in this case because a jail is not a "penal institution" within the meaning of that statute and he is not a "prisoner." These arguments are foreclosed by this court's decision in Commonwealth v. Pettijohn, 4 Mass. App. Ct. 847 , 847-848 (1976), in which we stated, "It is clear that an escape from . . . either a county jail or a house of correction is considered an escape from a penal institution within the purview of G. L. c. 268, Section 16." See G. L. c. 125, Section 1(k), (d) and (m), as appearing in St. 1972, c. 777, Section 8. In light of this and other decisions of the Massachusetts courts construing G. L. c. 268, Section 16, broadly to apply to all escaping prisoners (see Commonwealth v. Hughes, 364 Mass. 426 , 428-431 [1973]; Commonwealth v. Reed, 364 Mass. 545 , 547-548 [1974]; Commonwealth v. Sneed, 3 Mass. App. Ct. 33 , 33-34 [1975]), we are not persuaded by the defendant's arguments urging us to distinguish, for purposes of the escape statute, between prisoners who have been convicted and sentenced to a correctional facility and individuals awaiting trial who are placed in custody in a correctional facility in accordance with law.

Judgment affirmed.