The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1911-11-05
DECISION IN
HATHAWAY CASE
Judge Bank Gives His Reasons for
Returning Verdict Of Not Gull.
ty in the Hathaway Prison
Escape Case.
BANK QUOTES DECISION
Hathaway's Departure Was Unlawful
But Not Punishable Under the
Escape from Custody
Statute.

IL LIS ueClSlOu IN the tatnaWdy |
case Thursday Judge Bank did not
hold that Hathaway had a right to
leave the prison or outside premises
thereof or escape thereIrom, nor that
the escape was not unlawful, but that
under the statute there must not only
be unlawful escape, but it must be
shown by the evidence that there was
an unlawful escape from Custody
Following are memoranda of the
judges opinion, giving his reasons for
the ruling:
The question to be determined on
the motion submitted to the court on
Wednesday--to take the case from
the jury involves the question of the
meaning of the term custody" AS
defined by Mr.. Webster, the word
custody among other things, is de-
fined as keeping or guarding, care,
watch; judiciary for penal safe keep
ing, control of a thing CT person with
such actual or constructive possession
as fulfills the purpose the law or
duty requiring it; the state of being
guarded or watched to prevent es-
cape; restraint of liberty; confine-
ment.
| The Indictment in this case does not
merely charge an unlawful escape,
but it charges what under the statute
it must do-an escape from custody
and the question t. be determined is,
/ did the defendant escape from Gus
tody?" or, in other words was he in
custody at the time he left the prem
Uses where he was emrloyed?' There
| is no evidence tending to show that
there was any guard present, or that
the defendant was in charge of any,
or, at the time he left, nor that he
was told that he must not leave the
premises upon which he was employ
| ed.
The statute under which the de.
lfendant was indicted is late one and
has never been construed by our SUI
preme court.
According to Texas decision, the
term sin custody means where one
Iperson exercises control over the
person of another and detains him
within certain limits. See End volume
I Words G. Phrases, citing the above
case.
! And according to North Carolina
decision the word custody implies
physical force sufficient to restrain a
lprisoner from getting at large. and
that no moral obligation can be re-
4 ceived as supstitut, for 1t, and that
I where a prisoner was permitted to
keep a key for the jail while he re-
NAMED in Jail, it was held that he was
not in legal custody. See Words 4
Phrases citing the above case. Z
If there was any evidence showing
that there was some officer, guard or
person under whose control the
defendant was while outside of
the enclosure of the prison,
and while on the premises
where he was employed, and whose
commands and directions defendant
must obey, and if he did not such
guard or person had authority to com.
Ipel obedience, then I should hold that
1.-THE defendant was in custody of such
guard at the time, that is to say such
guard or officer would be there to for
bid defendants going away from OF
leaving the premises where he was
employed In such case, II the evi
ldence so showed or tended to show
the defendant would be in custody
-, 49, x,otiop would boyo %r, ho cyo,
ruled. But as the evidence shows
that there was no one in charge to
control or restrain defendant in case
the defendant should go away from OF
undertake to leave his place of en-
ployment, then defendant could not
be considered as being in custody OF
any one, as there would be no one
present to control defendants actions
or to forbid his leaving.
OF course, one guard might have
the control Of many prisoners who
are placed in his charge and they
would all be in his custody, and il
present he could give orders to them
which they must obey or be guilty Of
disobedience.
In order to be in, custody outside
of the enclosure Of the prison there
should, in my opinion, be some one
present and in control to direct the
movements of those under his charge
and to be on guard SO as to forbid
such actions, If any. as were not al
lowed. In this case there is no evi
dence that there was any such guart
or person in control Of the defendant
and there is no evidence tending te
show that the defendant was told not
to leave the premises where he was
at work,
I After duly considering all the auth
critics cited, and making thorough
Investigation Of the matters involved
the court finds that the motion to di
rect verdict in favor of the defend
ant must be sustained. and it is sc