
    No. 758
    ZIMMERMAN et v. UNITED STATES
    U. S. Appeals, 6th Circuit
    Nos. 4001, 4018.
    Decided July 8, 1924
    1277. WORDS AND PHRASES—'‘‘Voluntarily suffer to escape” in Criminal Code, making it offense for those having prisoners in their custody to voluntarily suffer them to escape, imply willful or intentional permission to escape, but carelessness does not constitute offense.
   PER CURIAM.

Sam Zimmerman and Andrew Szmetko were convicted in the District Court of the United States, for the Western Division of the Northern District of Ohio for allowing three prisoners to escape from the Lucas County jail. It appears that Zimmerman and Szmetko were jailers and on the occasion of the commission of the alleged crime were directly in charge of federal prisoners confined in the county jail. Evidence as to the escape showed that the prisoners were housed in what is known as the “hull pen.”

Attorneys—Curtis T. and Ben W. Johnson, Toledo, for Zimmerman et; A. E. Bernsteen, U. S. Atty., Cleveland, and Geo. E. Reed., Asst. U. S. Atty., Toledo, for United States. “

Szmetko, in order to give the prisoners a bucket of soup, manipulated the levers controlling the cell doors, contrary to instructions, allowing the dooir to open, whereupon the jailers were attacked and three of the prisoners escaped.

Zimmerman' and Szmetko were indicted jointly under section 138 of the Criminal Code (Comp. St. par. 10308) which reads, “Whenever any marshall-----or other person has in his custody any prisoner by virtue of process issued under the laws of the United States -----and such - - other person voluntarily suffers such prisoner to escape”, he shall be punished as provided therein - - - -. The defendants were sentenced to 21 months in the penitentiary.

Error was prosecuted to the Circuit Court of Appeals, which held:

1. Voluntarily suffering a prisoner to escape is not a technical expression; it required no refined legal definition or elaborate explanations.

2. The words, in our judgment, clearly refer to acts and omissions on the part of a person in charge of a prisoner intended by him to permit the latter to escape.

3. The view of the court below that the statute was designed to punish “what we loosely call criminal carelessness” or “acquiescent carelessness,” whatever these phrases may mean, cannot be accepted.

4. The jury might well have concluded from the charge that if the defendants, at the moment of the attack, upon them, consciously, though in a real sense unwilling, permitted the prisoners to escape rather than subject themselves to imminent danger, they were guilty of what the court terms acquiescent or criminal carelessness, regardless of a total prior ignorance of the plan of escape.

5. There is implied if not expressed in the statutory phrase, a willful or intentional permission to escape; naturally direct proof of intent is not required. Recklessness, whether, in omission or commission may justify the inference of such intent, but carelessness of whatever grade is not synonymous therewith.

Judgments reversed and causes remanded.  