Smith v. State

McNEILLY, Justice:

Defendant appeals from his Superior Court conviction of escape (11 Del.C. § 1253). 1 based upon his failure to return from a 48-hour furlough to the Sussex Correctional Institution where he was serving a Superior Court sentence of imprisonment.

Defendant contends that his failure to return from furlough does not constitute an “escape” because he was not “in custody” while on furlough. He relies on U. S. v. Person, S.D.Cal., 223 F.Supp. 982 (1963) which applied the rule of strict construction and held that failure to return from furlough was not punishable as an escape under…