Opinion
No. 13750.
December 10, 1969.
Milford L. Gibson, Elkins, W. Va., for appellant.
Leslie D. Lucas, Jr., Asst. U.S. Atty. (John H. Kamlowsky, U.S. Atty., on brief) for appellee.
Before BOREMAN, WINTER and CRAVEN, Circuit Judges.
Damian Patrick Trieber (hereafter defendant or Trieber) was charged with escape from Robert F. Kennedy Youth Center, a federal institution located at or near Morgantown, Monongalia County, West Virginia, in violation of Title 18, U.S.C. § 751(b), after having been committed as a juvenile delinquent under the provisions of Title 18, U.S.C. § 5034. Upon a plea of not guilty he was convicted by a jury and sentenced to a term of one year. By agreement of counsel for the defendant and the Government, the case was submitted to us on briefs without oral argument.
On appeal Trieber challenges: the sufficiency of the evidence to sustain his conviction; the denial of his motion for judgment of acquittal at the close of the government's evidence; and, the correctness of the court's charge to the jury.
The evidence established that at 12:01 a.m., on May 5, 1969, the defendant was lawfully in the custody of the Kennedy Youth Center in Cottage D. A later check disclosed an open window in Cottage D and the fact that the defendant and two other inmates of the cottage were missing. Some thirty-eight hours later and several miles away defendant and one of the other missing youths were taken into custody by a police officer at Masontown, West Virginia, and returned to the Youth Center.
Upon review of the briefs and the record, we think the defendant had a fair trial and we affirm the judgment below. The evidence was sufficient to support the denial of the motion for the judgment of acquittal and to sustain the conviction. Considering the court's charge to the jury in its entirety, we find it adequate and without reversible error.
Affirmed.