COMMONWEALTH vs. DENISE ANN VIOLET REED (and a companion case [Note 1]).

TAURO, C.J. Both defendants were tried and convicted under indictments pursuant to G. L. c. 268, Section 16A, as amended through St. 1955, c. 770, Section 83, [Note 2] charging escape. The indictments stated that each defendant "being a prisoner

Page 546

in the Massachusetts Correctional Institution at Framingham . . . did break therefrom and escape." The cases are here on bills of exceptions to the denial of the defendants' motions for directed verdicts. The statute imposes imprisonment for a term not exceeding two years on any prisoner "who escapes or attempts to escape from the Massachusetts Correctional Institution, Framingham, or from land appurtenant thereto, or from the custody of any officer thereof, or while being conveyed to or from said correctional institution . . .." The defendants contend that the statute is inapplicable to them. We state the pertinent evidence. Both were confined at the women's reformatory, Massachusetts Correctional Institution, Framingham. When a question arose as to whether they were suffering from mental illness, they were examined by a psychiatrist, and were ultimately transferred for thirty days' observation to the Westboro State Hospital. Prior to the expiration of the thirty day period, they left the hospital without authorization, returning voluntarily after a period of absence. They contend that they left Westboro State Hospital, and not the Massachusetts Correctional Institution, Framingham, and thus G. L. c. 268, Section 16A, did not apply to them. The Commonwealth, on the other hand, relies on G. L. c. 127, Section 119, as appearing in St. 1967, c. 258, Section 2, which reads, "Any prisoner placed in a hospital or medical facility . . . shall, during his absence from prison or the jail or house of correction, be considered as in the custody of the officer having charge of the prison, jail or house of correction, and the time of confinement in said hospital or medical facility shall be considered as part of the term of sentence." On the basis of this section, the Commonwealth asserts that in leaving Westboro State Hospital, the defendants escaped from "the custody of . . .[an] officer" of the Massachusetts Correctional Institution, Framingham, and thus committed the crime of escape under G. L. c. 268, Section 16A. We agree.

Before further discussion of the issue, we first pause to dispose of a threshold argument advanced by the Commonwealth. The defendants, after being found guilty by the

Page 547

judge sitting without a jury, received no sentences but were instead placed on probation for one year. This disposition differs in form, but not in substance, from the initial imposition of a sentence which is at the same time suspended with an order for probation. The Commonwealth contends this formal distinction is important in light of the rule that an appeal to this court lies only where there has been final judgment. In this case, it is argued, there was no final judgment because "`in a criminal case the sentence is the judgment.' Commonwealth v. Dascalakis, 246 Mass. 12, 19 [1923]." The Dascalakis case, however, concerned only the question of the prosecutor's power, after conviction but before sentencing, to enter a nolle prosequi. Thus, while what was said in the Dascalakis case may have relevance in that context, it does not bear directly on the essential question of a defendant's right of appeal to this court. More in point are our earlier holdings that a suspended sentence under G. L. c. 279, Section 1, represents a final judgment from which a claim of appeal may be filed. Mariano v. District Court of Cent. Berkshire, 243 Mass. 90 (1922). Forcier v. Hopkins, 329 Mass. 668 (1953). We believe that a defendant who has received no sentence but instead has been placed on probation should have a right of appeal. In the circumstances of this case we think there is no substantial difference between placing the defendants on probation, without more, as opposed to the imposition of suspended sentences with probation. We hold, therefore, that the defendants have a right to appeal in this case. Delaney v. State, 190 So. 2d 578 (Fla. 1966). See People v. Sims, 32 Ill. 2d 591 (1965); State v. Longmore, 178 Neb. 509 (1965).

We now turn to the question of the applicability of G. L. c. 268, Section 16A, to the defendants' conduct. As in Commonwealth v. Hughes, ante, 426, we decline to follow a strictly literal approach. Rather, it is our view that, in interpreting escape statutes, there is justification for adopting a construction which permits the punishment of all escaping prisoners. It is self-evident that G. L. c. 268, Section 16A, does not contain any explicit provision which makes it a crime to

Page 548

escape from Westboro State Hospital. But that section cannot be read in isolation, apart from the language of G. L. c. 127, Section 119, which defines the custodial relationship between a prisoner and the correctional institution from which he is temporarily transferred. General Laws c. 127, Section 119, pointedly states that "Any prisoner placed in a hospital . . . shall, during his absence from prison or the jail or house of correction, be considered as in the custody of the officer having charge of the prison, jail or house of correction, and the time of confinement in said hospital . . . shall be considered as part of the term of sentence" (emphasis added). It would seem illogical to construe a legislative intent that although the prisoner was to get credit in the execution of his sentence for the term spent in the hospital, however, if he escaped from the hospital he was not considered to be in custody for the purpose of being punished. Legally, a prisoner transferred from the Massachusetts Correctional Institution, Framingham, to Westboro State Hospital remains in the "custody of the officer having charge" of the Massachusetts Correctional Institution, Framingham. General Laws c. 268, Section 16a, explicitly makes it a crime to "escape . . . from the custody of any officer [of Framingham]." Reading these two statutes in conjunction, keeping in mind (1) G. L. c. 268, Section 16A's, over-all purpose of deterring and punishing all escaping prisoners, and (2) the significant similarity of the language employed in both provisions, we conclude that the defendants, in leaving the Westboro State Hospital without authorization, committed the crime of escape as defined in G. L. c. 268, Section 16A. See Commonwealth v. Hughes, ante, 426. Cf. People v. Priegel, 126 Cal. App. 2d 587 (1954); Slagle v. State, 243 Md. 435 (1966); but cf. Goodman v. State, 96 Ariz. 139 (1964); State v. Burris, 346 S. W. 2d 61 (Mo. 1961).

Exceptions overruled.

Judgments affirmed.

HENNESSEY, J. (dissenting). I respectfully dissent because under the relevant statutes (G. L. c. 268, Section 16A, and G. L.

Page 549

c. 127, Section 119) the defendants committed no crime. As in Commonwealth v. Hughes, ante, 426, I believe that the majority have failed to construe the statutes in appropriately strict fashion.

First of all, I attach no significance here to the variance between the proof and the indictments, which charged, pursuant to G. L. c. 268, Section 16A, that each defendant "being a prisoner in the Massachusetts Correctional Institution at Framingham . . . did break therefrom and escape." The stipulated facts make it clear that the defendants were convicted of violating that part of Section 16A which prohibits an escape "from the custody of any officer thereof" rather than from the institution itself. The defendants do not rely upon the formal defect, which in any event could readily have been cured by amendment.

Nor is there any difficulty here, as there was in the Hughes case, of identifying any conduct of the defendants as an "escape," within the ordinarily accepted meaning of that term. It is clear that the defendants deliberately removed themselves from their detention in Westboro State Hospital to which they had been properly ordered to be taken for thirty days observation under the provisions of G. L. c. 123, Section 18.

The only question is whether their escape was in violation of c. 268, Section 16A. I believe it was not.

The majority rely upon the provision in G. L. c. 127, Section 119, that prisoners placed in a hospital or medical facility are to be considered as in the custody of the officer having charge of the prison, jail or house of correction. The clear and only purpose of this statute is to ensure that time spent in the hospital will be counted toward the completion of a defendant's sentence. [Note Dissent-1] To hold that its enactment suffices to

Page 550

make conduct criminal, which would not otherwise be so, unreasonably expands the meaning of an escape statute which on its face appears to specifically delineate the circumstances in which it will render an escape criminal. Furthermore, it violates the principle that criminal laws are to be strictly construed and are not to be extended by mere implication. Commonwealth v. Paccia, 338 Mass. 4, 6 (1958). See Commonwealth v. Hughes, ante, 426 (Hennessey, J., dissenting).