State v. Flemming

*450POMEROY, Justice.

Does a person commit the crime of escape (former 17 M.R.S.A. § 1405) when he fails to return from a furlough from a mental health institution where he was committed upon a finding that he was not guilty of a felony by reason of mental disease or defect? That is the issue squarely presented in this case.

David Flemming, the appellee, was found not guilty by reason of mental disease or defect of felonious homicide punishable as murder. As is required by 15 M.R.S.A. § 103 he was committed to the Bangor Mental Health Institute. After failing to return to the institute from a furlough, he was charged with the crime of escape. Upon a proper motion, the indictment charging escape was dismissed for failure to state a crime cognizable under the laws of Maine.

The state seasonably appealed.

.We sustain the appeal.

These facts are undisputed: (1) Appellee was confined in a mental health institution under a lawful order of the Superior Court; (2) this order resulted after a finding that he was not guilty of “murder” by reason of mental disease or defect; (3) he did not return to the institution from a 14-day furlough; (4) his absence from the institution was unauthorized.

The statute he is alleged to have violated read in part as follows:

“Whoever, being lawfully detained in any jail or other place of confinement, except the State Prison, breaks or escapes therefrom, or attempts to do so, shall be punished . . . . The sentence to such imprisonment shall not be concurrent with any other sentence then being served or thereafter to be imposed upon such escapee. . . . ” [Former 17 M.R.S.A. § 1405] P.L. 1963, c. 77 (Emphasis supplied.)

The predecessor of former 17 M.R.S.A. § 1405 was first enacted in 1915. P.L. 1915, c. 136. The statute as originally enacted specifically required that the confinement be for a criminal offense. The statute in pertinent part read:

“Whoever, being lawfully detained for any criminal offense, in any jail or other place of confinement . . . shall be punished . . . .” P.L. 1915, c. 136.

In Smith v. State, 145 Me. 313, 75 A.2d 538 (1950), this court declared that one of the elements of the crime of escape, as the statute was then written, was that the detention from which the prisoner escaped be for a criminal offense. The court specifically perceived the purpose of the statute as providing

“for the punishment of those who, having been convicted of crime, escape from jail or other place of detention ... before or after sentence.” 145 Me. at 327, 75 A.2d at 545.

The “escape statute” was amended in 1951 resulting in the deletion of the requirement that the detainment be for a criminal offense. P.L. 1951, c. 3. Subsequent to this amendment, the court, in State v. Morton, Me., 293 A.2d 775 (1972), emphasized that the focus now centers on the lawfulness of the detention, not the reason behind the detention. See id., at 776.

In 1950 the court perceived the purpose of this statute as providing punishment for those individuals who, having been convicted of a crime and subsequently detained, escape from such detention. Smith v. State, supra, 145 Me. at 327, 75 A.2d at 545.

In 1951 the legislature eliminated the need to focus on the reason for the detainment. P.L. 1951, c. 3. Though there is no legislative history to guide us, we perceive the purpose of the amendment to expand the scope of the statute to include any individual lawfully detained, be the detention criminal or essentially civil in nature.1

As this court said in Hamner v. State, Me., 223 A.2d 532, 535 (1966):

*451“It [the legislature] proceeded from the theory that all should yield obedience to lawful authority.”

To escape from lawful confinement in a mental institution after a finding of not guilty by reason of mental disease or defect of the commission of a felony is an evil to be avoided, not merely because of the threat of violence but also because the judicially sanctioned control of such person is frustrated thereby. The focus is not only on the actual restraint on one’s freedom but also on the effect that flight will have on the exercise of judicial' authority. See In Re State in Interest of M.S., 129 N.J.Super. 61, 322 A.2d 202 (1974), and cases cited therein.

The second issue which we must address is whether the phrase “other place of confinement” would include confinement in a mental health facility. A basic tenet of statutory construction is that words are to be given their ordinary meaning. The statute in question speaks of detainment in a place of confinement. To “detain” is “to hold or keep in or as if in custody . .” Webster’s International Dictionary (3rd ed. 1971). “Confinement” is defined as “the act of confining (to hold within bounds: restrain from exceeding boundaries) or the state of being confined: restraint within limits.” Id.

Neither word in its ordinary usage connotes a punitive or penal quality. Giving the words of the statute their plain meaning, there is nothing to suggest that an escape need be from a penal institution to be criminal. As long as an individual is held, subject to judicially ordered restraint on his movement, the statute’s plain meaning does not limit the place of such confinement to a penal institution alone.

In short, an escape by an individual confined in a mental health institution as the result of being acquitted of a crime by reason of mental disease or defect is a crime in the State of Maine. Former 17 M.R.S.A. § 1405.

The justice below erred in dismissing the indictment for failure to state a crime cognizable in the State of Maine.

The entry must be:

Appeal sustained.

The case is remanded to the Superior Court for further proceedings not inconsistent with this opinion.

POMEROY, WERNICK, ARCHIBALD, DELAHANTY and GODFREY, JJ., concurring.

DUFRESNE, C. J., concurring in result.

. In the instant case, the appellee’s confinement was essentially civil in nature. Confinement as the result of a verdict of not guilty by reason of mental disease or defect is not punitive in nature. See Chase v. Kearns, Me., 278 A.2d 132, 138 (1971).