Evening star., 1947-05-29
u. 5. 10 Appeal Ruling
|Voiding Conviction Of
Guards in Escape Case

United States Attorney George
Morris Fay announced today thai
he will appeal from the decision
handed down yesterday by District
Court Justice Alexander Holtzofl
which had the effect of setting
aside the recent jury conviction oil
two policemen for negligently per-
m1tting two nnurderers to escape
from District Jail.
The case was that Of Policemen
Hubert c. Davis and Oscar C. Sun.
derlin, convicted for permitting Ear
Mcfarland and Joseph D. Medley
to escape in April, 1916. Both Med
ley and Mcfarland were recapturec
and later executed. The. trial oil
the two policemen was prosecuted
by Assistant United States Attorney
John c. Conliff, jr.
In his opinion. Justice Holtzofl
granted an "order in arrest o1
judgment" The action gave thu
Government the right to appeal
Should the Government win on ap.
peal, 1t would mean reinstatement
OF the jury's verdict, and the two
policemen then would be subject ts
sentence.
Justice Holtzoff's action was based
on common law, the opinion point
ing out that there is no statute In
the District covering the offense
In his opinion reviewing the com.
mon law, Justice Holtzoff cited q
Tower of London case dating back
to the 18th Century.
Could Have Denied Appeal.
Had Justice Holtzof ordered a
verdict of acquittal, as requested by
defense counsel, it would have had
the effect of clearing the policemen,
without giving the Government the
right to appeal.
In going back to old English
common law. Justice Holtzoff said
authorities would indicate that the
only person who was subject to
prosecution at common law for
negligent escape was either the
sheriff or the person in charge OF
the institution to which the prisoner
was committed and to whom, there
fore, the lawful custody of the pris-
oner was entrusted"
He also declared the only Ameri-
can case on the point adopts the
same doctrine and clearly explains
why, at common law, criminal
liability for negligent escape at
tached to the sheriff and to the
keeper OF the Jail, but not to their
subordinates."
After citing other cases, Justice
Holtzoff, in his opinion, said:
The foregoing review of what ap-
pears to be the only authorities on
this topic inescapably leads to the
inference that, at common law, a
prosecution for negligent escape
would lie only against the sheriff
the keeper of the jail, or other Off
GERS into whose official custody the
prisoner was committed by judicial
process or otherwise. Such a prose
cution could not be maintained
against a guard or a watchman O,
other subordinate. The reason fol
this distinction is that the superio,
officer is clothed with the primary
responsibility for the custody of the
prisoner and has authority to take
whatever measures he deems neces.
sary for his security.
In any event, whatever be the
reason for the doctrine, the rule
seems clear. Since in the District
of Columbia there is no statute or
the subject and the prosecution
would lie only if it could have been
maintained at common law, the
ultimate conclusion follows that
these defendants, who were acting
in the capacity of guards or watch
men, may not be convicted of negli-
gent escape"
Charles E. Ford is attorney for
Sanderlin and James ]. Laughlin
represented Davis,