COMMONWEALTH vs. CHARLES BEST.

LIACOS, J. On May 1, 1979, the defendant, Charles Best, was indicted for escaping from the Hampden County house of correction, "or from the custody or officer thereof," in violation of G. L. c. 268, Section 16. Best pleaded not guilty and was tried jury waived in the Superior Court in Hampden County on July 30, 1979. At trial, pursuant to Mass. R. Crim. P. 25 (a), 378 Mass. 896 (effective July 1, 1979), the defendant moved for a required finding of not guilty on the ground that the Commonwealth had proved an escape from a house of correction work release program, G. L. c. 127, Section 86F, not a violation of the general escape statute, G. L. c. 268, Section 16. The judge denied the motion, found the defendant guilty, and sentenced him to serve three to five

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years at the Massachusetts Correctional Institution -- Walpole. The defendant appealed, and we transferred the case here on our own motion. The appeal was argued before us on May 5, 1980, and we issued an order on May 7, 1980, the relevant portion of which is set forth in the margin. [Note 1]

A review of the trial transcript shows that, on August 4, 1978, Best was sentenced for one year to the Hampden County house of correction. Six months later, he was transferred to the prerelease center at the house of correction. The center conducted a work-release program [Note 2] in which the defendant held three jobs: at Westover Knitting Mills, the local YMCA, and a car wash. For the YMCA job, he generally left the prison around 7 P.M. and was due back around 10 P.M. At 7:30 P.M. on April 14, 1979, Whillie Smith, a counsellor at the prerelease center, drove Best to his job at the YMCA. Best did not return to the prison. He was arrested on June 13, 1979, during a disturbance at a bar, and he was identified and booked on an escape warrant.

The defendant contends that at the trial the Commonwealth proved a violation of G. L. c. 127, Section 86F, even though the indictment charged a violation of G. L. c. 268, Section 16. This, the defendant contends, is a fatal variance requiring reversal of the conviction. The defendant argues in his brief that, if the Commonwealth proved a violation of

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G. L. c. 127, Section 86F, [Note 3] not G. L. c. 268, Section 16, [Note 4] the conviction must be reversed. [Note 5]

He contends, in substance, that "a crime must be proved as charged and must be charged as proved." See, e.g., Commonwealth v. Grasso, 375 Mass. 138, 139 (1978). Thus, he claims the Commonwealth had to prove that Best violated G. L. c. 268, Section 16. Best points out further that, in Commonwealth v. Hughes, 364 Mass. 426, 430-431 (1973), we distinguished between G. L. c. 127, Section 49, and G. L. c. 127, Section 90A. Section 49 applies to escapes from work release and other outside programs for inmates of State correctional institutions. Section 90A relates to furloughs for inmates of State and county correctional facilities. We noted that Section 90A authorizes the Commissioner to "extend the limits of the place of confinement" by granting furloughs.

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We held G. L. c. 268, Section 16, applies to escapes while on furlough because an inmate on furlough is constructively within the penal institution. However, we stated "[t]he absence of similar language in Section 49 suggests that the Legislature thought it necessary to include in that section express language making the failure to return to the penal institution from a program outside the correctional institution punishable as an escape." Best contends that this dictum applies to Section 86F and implies that an escape within Section 86F is not an escape within Section 16. We disagree.

We are not bound by a dictum about a statute not involved in the case before us. Nor are the implications of that dictum wholly clear. Even if we give that dictum the meaning the defendant urges, Section 86F must be interpreted in light of its own language. Section 86F must be interpreted in light of its own language. Section 86F describes conduct by which an inmate "shall be held to have escaped from such house of correction" (emphasis supplied). Even though the Legislature did not repeat the "extend the limits of . . . confinement" language of Section 90A, the Legislature in Section 86F did define an escape, which constituted an "escape from any penal institution" within the meaning of G. L. c. 268, Section 16. These two techniques of bringing inmate conduct within the reach of Section 16 are different, but not inconsistent. [Note 6]

The Commonwealth argues that Section 86F does not cover all failures to return from work release to the house of correction. For example, an inmate could fail to return from work release, but the incident might not involve leaving the place of employment without permission or disobedience of a direct order to return. The Commonwealth would treat such an inmate's failure to return as an escape within Section 16, but not within Section 86F. Furthermore, the Commonwealth argues that the present record does not establish that the

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defendant Best was on work release at the time of his failure to return.

The Commonwealth, however, reads Section 86F more narrowly than is necessary. Inferentially, an inmate on work release is subject to a general order to return to the house of correction at the end of his work shift. He is on work release from the time he leaves the prison to go to work until he returns. Section 86F applies throughout this interval.

In the present case, Best was a participant in a work release program at Hampden County house of correction. It is undisputed that on April 14, 1979, Willie Smith, a counsellor in the prerelease center, drove Best to his job at the YMCA. This establishes that he was on work release at the time of the alleged escape. It is also undisputed that Best did not return to the prison, and Best does not contend that he had any special permission that might justify his failure to return. Under the circumstances, the evidence showed that Best violated Section 86F.

The construction we give Section 86F seems to us to be in accordance with the expressed intent of the Legislature. Also, such a construction harmonizes the meaning of these statutes. See, e.g., Labor Relations Comm'n v. Selectmen of Dracut, 374 Mass. 619, 624 (1978). Further, such a construction simplifies the elements of proof of an "escape" and leaves the application of the appropriate statute to the question of sentencing and disposition. [Note 7]

A rescript is to issue.