State v. Feemster

GUNN, Judge. Defendant was found guilty by a jury of the § 557.3901 charge of escaping from custody before conviction. On appeal the defendant contends that the State failed to prove that the defendant had not yet been convicted of the charge for which he was held. We disagree and affirm. The evidence conclusively shows that on May 15, 1974, defendant was charged with first degree murder. While the charge was pending, the defendant was taken to St. Louis City Hospital No. 2 for treatment of a leg infection. On August 10, 1974, while in the hospital, the defendant was able to twist off the handcuffs binding him to his hospital bed, and he escaped. He was again arrested on January 18, 1975. The defendant concedes that he was in lawful custody for the criminal charge of first degree murder and that he escaped from that custody while in the hospital on August 10, 1974. However, he asserts that the State failed to prove that his escape was before conviction. The record clearly refutes defendant’s argument. The official court file relating to defendant, which was admitted into evidence without objection, conclusively established that from May 15, 1974, the filing date of the substitute information for the charge of first degree murder, until August 10,1974, the date of the hospital escape, the defendant had not been tried or convicted for the first degree murder charge. Hence, the defendant’s escape was before conviction. The record placed in evidence was the official court file, properly identified by the deputy clerk of the St. Louis Circuit Court of Criminal Causes, served as competent evidence that the defendant had escaped his confinement before conviction of the charge of first degree murder. § 490.680; State v. Kent, 382 S.W.2d 606 (Mo.1964). Defendant relies on State v. Alderman, 500 S.W.2d 35 (Mo.App.1973), which is not appropriate to this case. In Alderman, the record conclusively established that the defendant had escaped after his conviction of the charge for which he was being detained and that there was an utter lack of evidence to prove that the defendant had escaped before conviction; not so here. The judgment is affirmed. SIMEONE, P. J. and KELLY, J., concur. Footnotes [1] Statutory references are to RSMo. 1969.