Goldmann, Conford and Freund. The opinion of the court was delivered by Goldmann, S.j.a.d.
Defendant was tried and convicted in the Monmouth County Court on an indictment charging him with the crime of escape, N.J.S. 2 A:104-6, and was subsequently sentenced to a State Prison term of from one to three years. He appeals, claiming that he could not be guilty of the crime charged because at the time of his escape he was being illegally confined in violation of N.J.S. 2 A:4-33.
The facts are undisputed. On September 20, 1957 defendant was arrested and charged with breaking and entering and with larceny. The following day the Middletown Township magistrate committed him to the Monmouth County Jail where he was confined in an area known as Bull Pen No. 2. On September 22 it was discovered that defendant was only 17 years old. The magistrate therefore recommitted him, this time to the Monmouth County Juvenile Detention Center. Defendant was thereupon moved to Bull Pen No. 1 which, according to the sheriff, had verbally been designated as the juvenile detention center by some one in the Department of Institutions and Agencies in the course of a telephone conversation with him. There was, however, no official order designating that pen as the center. Bull Pen No. 1 housed some 20 to 22 prisoners at that time, most of them adults who had been convicted of crime or were awaiting trial on criminal charges.
There is nothing in the record or the briefs to indicate that when defendant was moved to Bull Pen No. 1 he knew that this confinement violated N.J.S. 2 A:4-33, which reads:
A child between the ages of 16 and 18 years coming within the provisions of this chapter shall not be placed in any prison, jail, lockup or police station unless there shall be no other safe and suitable place for his detention, and it is necessary for his protection or the protection of the public, and unless when so placed in a jail, lockup or police station it shall be in a segregated section of such premises where the said child cannot have contact with any adult convicted of crime or under arrest.
It is clear that defendant's confinement in Bull Pen No. 1 violated the quoted statute. The fact that the sheriff had the oral approval of the state agency to use this pen as a juvenile detention center is immaterial. Indeed, the State does not claim that any agency order purported to, nor could it possibly in the face of the statute, authorize defendant's confinement with adult offenders. The State's contention that there was "no other safe and suitable place" for the detention, and that defendant's confinement was for "the protection of the public" and therefore the statute was not violated, is specious. It disregards the conjunctive requirement that the minor be segregated and not "have contact with any adult convicted of crime or under arrest."
The State suggests that defendant's confinement may have been proper under R.S. 30:8-8. That statute directs freeholder boards to arrange places of confinement so as to segregate persons under the age of 18, and goes on to provide:
"* * * If it is impractical to so arrange the building used for such [confinement] purposes, such boards of chosen freeholders shall provide such places as shall be necessary to accomplish the purposes of this section."
In the first place, the State does not attempt to show the impracticability of accomplishing the purposes of R.S. 30:8-8, or of any real attempt to do so. Secondly, as we read this statute, it actually reinforces the mandate of N.J.S. 2 A:4-33 by directing freeholder boards to keep persons under 18 "separate and apart from and so that no communication takes place between them and other persons above such age confined therein on a charge or conviction of crime."
The single point raised by defendant on this appeal is that he had a right to escape because, under N.J.S.
2 A:104-6, his confinement was not "lawful." This statute reads:
"Any person imprisoned or detained in a place of confinement, or being in the lawful custody or control of a penal or correctional institution or of an officer or other person, upon any charge, indictment, conviction or sentence for any crime, * * * who by force or fraud escapes or attempts to escape from such place ...