§ 3. Places of Confinement, Generally

The Attorney General has a statutory duty to accept military prisoners whose incarceration in federal institutions has been prescribed by military authorities. In enacting UCMJ, Art 58 (a), Congress reaffirmed the authority which the Navy had had since 1862, under Art 7 of the Articles for the Government of the Navy, to execute confinement sentences "in any penal or correctional institution under the control of the United States, or which the United States may be allowed to use" (64 Stat 126). In the light of the legislative and administrative background of Army and Navy correctional systems, it appears that Congress did not intend to require the military services to maintain a category of high-security penal institutions solely for the confinement of a relatively small number of hardened and nonrestorable criminals who happened to commit their offenses against the Federal government while in a military status. Congress must be presumed to realize that the small number of long-term nonrestorable military offenders can be far more economically handled within the current annual appropriation for the Federal prison system (67 Stat 374, 422) than by the establishment of adequate duplicate facilities within the military departments. Op JAGN 1954/221. 14 June 1954.

§ 23.1. Generally.

§ 23. Escape from Confinement

Legality of confinement by warrant officer serving as officer of the day, see ACM 9393, Jones, APPREH § 25.

Right to return escaped prisoner to serve remainder of sentence after his dishonorable discharge has been effected, see Op JAGAF 1955/6, SENT & PUN § 13.1.

§ 23.11. Confinement by civil authorities.

Escape from civil confinement as violation of UCMJ, Art 134 rather than Art 95, see ACM S-9869, Hunt, APPREH § 7.11.

§ 27.7. Weight, effect, and sufficiency.

The accused prisoner and seven other prisoners were escorted by an unarmed guard to the base chapel to attend church services. Upon arrival at the chapel, the guard stepped inside the door to see if it was clear for the prisoners to enter. The guard testified that from his position inside the door he could see the prisoners. Of necessity, his back was to the group for a matter of seconds when he stepped inside the door to look into the chapel. When he turned around to enter, he saw the accused and the other prisoners "break and run away" in different directions. After the law officer instructed that the elements of the offense were that the accused was duly placed on confinement, that he knew of his confinement, and that at the time and place alleged he freed himself from the restraint of his confinement before he had been released from confinement by proper authority, the president of the court asked the law officer as to whether a prisoner who had been made a trustee and broken the trust had broken confinement under the law. The law officer merely answered the question by restating the elements of the offense as he had previously instructed. Defense counsel then requested an instruction that "if there was no physical restraint at the time the prisoner departed an essential element of the proof required is lacking and the charge and specification of Escape from Confinement cannot be upheld." However, the law officer declined to give the instructions stating that his instructions adequately covered the offense.

Held that:

— regardless of whether the accused is within or outside the confinement facility, to be legally sufficient in law and fact, the restraint that restrains the accused must be such that it is capable, if the occasion should require, of physically resisting or opposing any departure by him from the place where he is required to be, by bringing some degree of physical restraint upon his physical person (ACM 8233, Holcomb, 16 CMR 537). In order to create this physical restraint, it is necessary that the guard or person in charge of the accused possess some physical means, be it only his person, capable of and available to physically oppose and resist any unauthorized departure by the accused, and it is also necessary that he have the duty to use such physical means or some degree of it to resist or oppose any unauthorized departure by the accused. If the duty is shown to exist, it is immaterial that the guard or person in charge, fails, refuses or neglects, at the time of the accused's departure, to use some degree of such available physical means.

- from the evidence in the instant case, it appears that the accused was, from the time he left the guardhouse and at all times prior to his escape, in the presence of the guard and under his physical restraint. While the accused was not under an armed guard, he was under the guard of one charged with his physical retention as a member of a group, and as such was under physical

restraint within the meaning of UCMJ, Arts 9 and 95. The physical restraint was temporarily "impaired" and somewhat ineffectual when the guard's back was turned to the prisoner, but it was "not removed" and might have been "exerted in full force at any time" while the process of the prisoner's "casting off" of the physical restraint continued.

- however, in view of the fact that whether the accused was under physical restraint at the time of the alleged escape was a crucial issue and the defense counsel's and the president's request served to place the law officer on notice that clarifying instructions concerning the meaning of confinement or physical restraint were desirable and necessary to give the court proper guidance, the refusal of the law officer to give such instructions constituted prejudicial error. (Citing U. S. v. Offley (No. 1841), 3 USCMA 276, 12 CMR 32; U. S. v. Sandoval (No. 3001), 4 USCMA 61, 68, 15 CMR 61, 68; and other cases. Distinguishing ACM 6814, Haddox, 12 CMR 675.)

in the situation presented, the law officer should have given the following additional instructions: (1) An instruction substantially the same as set forth in the last paragraph of instruction 38a, Escape from Confinement, Court-Martial Instructions Drafting Guide, Department of the Air Force (15 June 1954), page 24; (2) an instruction substantially as requested by defense counsel; (3) an instruction as to the meaning of "Physical Restraint" as defined above. ACM 9395, Stewart, 17 CMR 805.

The accused was convicted of escape from confinement. The evidence established that he was duly confined in the base guardhouse and had not been released therefrom by proper authority. On the date of the alleged escape, the accused was one of several prisoners in a work detail under the supervision of a named guard. The guard was unarmed. During a break the work detail was marched to a latrine and when the detail was regrouped it was discovered the accused was missing. A search was made by the guard of the latrine and the building and in the streets and surrounding area outside but the accused was not found. The guard then returned the other prisoners to the guardhouse and reported the incident. The guard testified that when a prisoner was found missing the first thing to do was to call and report him missing and then return the other prisoners to the guardhouse as quickly as possible. Held: The fact that the guard picked up the detail of prisoners at the guardhouse, supervised the work of the detail, kept himself close to the prisoners at all times, and that he conducted a search when the accused's absence was discovered, furnishes strong evidence that the guard felt himself responsible for the physical presence of the prisoners. This evidence, remaining unrebutted, establishes beyond a reasonable doubt that the accused was under physical restraint at the time he escaped. The testimony of the guard that the first thing he was to do was to report the prisoner missing and then return the other prisoners to the guardhouse does not establish that he was under orders not to physically oppose an escape. Nor does the fact that the guard was unarmed establish absence of physical restraint. (Citing ACM 5791,

Conner, 7 CMR 477; ACM 6141, Farley, 9 CMR 753; ACM 6505, Wesson, 9 CMR 839; ACM 6814, Haddox, 12 CMR 675. Distinguishing ACM 8233, Holcomb, 16 CMR 537.) ACM S-9526, English (1954) 17 CMR 693.

The accused was convicted of escape from confinement. The evidence showed that he had been placed in confinement pursuant to a court-martial sentence. On the day in question he and some other prisoners were taken to the brig boiler room and turned over to a guard who put them to work outside the boiler room. The guard was not armed and he was not required to give his full time and attention to the prisoners, but had other duties to perform in an adjacent machine shop. The accused departed while the guard was in the machine shop and the prisoners were out of his sight. Held: Upon the facts, the court was warranted in finding the constituent elements of the offense proved, namely, that the accused had been duly placed in confinement, and that he had freed himself from the restraint of his confinement before he had been set at liberty by proper authority. Considering that the confinement facility was wholly within a Coast Guard station, and upon all the facts and circumstances, the relaxation of the guard's watch over the prisoners was not inconsistent with a continuance of the confinement status and cannot be considered as a setting at liberty of the prisoners. (Cf. CM 369374, Lorey, 14 CMR 393; ACM 8233, Holcomb, 16 CMR 537; ACM S-9526, English, 17 CMR 693; ACM 9395, Stewart, 17 CMR 805.) CGCMS 20122, Block (1955) 18 CMR 458.

§ 28.3. Elements of offense, generally.

Failure to give clarifying instructions as to meaning of term "physical restraint," see ACM 9395, Stewart, supra § 27.7.

§ 28.5. Attempts.

The accused was convicted of attempting to escape from confinement. The court was instructed that the elements of the offense were as follows: first, that, at the time and place alleged, the accused did a certain overt act; second, that the act was done with the specific intent to commit the offense of escaping from lawful confinement while confined in the brig, and third, that the act amounted to more than mere preparation and apparently tended to effect the commission of the intended offense. Held: The instruction was insufficient even though it adequately describes the attempt portion of the offense, since it does not sufficiently describe the substantive offense of escape from confinement. It failed to include two elements of that offense, namely, that the accused was duly placed in confinement and that he freed himself before he had been set at liberty by proper authority. Without proper instructions on the substantive offense the court could not decide whether the overt act tending to accomplish the unlawful purpose was proved. NCM 326, Duffy (1954) 16 CMR 393.

A specification alleged that the accused, "a prisoner on minimum custody parole" did on a certain date, "violate the conditions of his parole by leaving the limits of Keesler Air Force Base, without proper authority. The evidence showed that he signed a certificate which acknowledged that he understood his custody grade and that at no time, while confined in such status, was he to leave the base without permission. The confinement officer who classified the accused in the minimum custody status would not have done so if the accused had not signed the certificate. Minimum custody prisoners were permitted to work outside the guardhouse compound without guards, but there was no evidence that the accused had been given an outside detail on the date of the alleged offense. Held: The evidence does not support findings of guilty of a violation of parole, since, in the absence of evidence that the accused had been released from the compound by competent prison officials to work outside, the evidence does not establish that he ever entered into the status of parole. As a prisoner in minimum custody status, the accused could be under either physical or moral restraint, depending on the circumstances. When in the guardhouse or compound with guards supervising his activity, he would be in physical restraint within the meaning of UCMJ, Arts 9 and 95. When performing duties outside the compound and not under guard, he would be under moral restraint. In the latter instance he would be in a parole status since he would have attained that condition pursuant to his agreement. (See ACM S-3772, Rigney, 6 CMR 737.) ACM 8607, Aiken (1954) 16 CMR 612.