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sight of the prisoner, it seems to be the better opinion that he will be guilty of a negligent escape, though he should retake him immediately afterwards. (d) And if he has been fined for the offence, it is clear that he will not avoid the judgment of his fine by retaking the prisoner. (e) And it is also clear that he cannot excuse himself by killing a prisoner in the pursuit, though he could not possibly retake him, but must, in such case, be content to submit to such fine as his negligence shall appear to deserve. (f)

The proceedings against persons charged with having suffered Proceedings escapes must in general be by presentment or indictment, or they by present

ment or inmay be by information. (8)

dictment, or But where persons present in a court of record are committed to by a more prison by such court, the keeper of the gaol, as he is bound to have summary them always ready to produce when called for, if he fail to produce them, will be adjudged guilty of an escape, without further inquiry; unless he have some reasonable matter to allege in his excuse; as that the prison was set on fire, or broken open by enemies, &c. for he will be concluded by the record of the commitment from denying that the prisoners were in his custody. (h) And some have holden, (i) that if a gaoler say nothing in excuse of such an escape, it shall be adjudged voluntary: but it seems difficult to maintain that where it stands indifferent whether an escape be negligent or voluntary, it ought to be adjudged a crime of so high a nature, without a previous trial. (k) With respect to other prisoners not committed in such manner, but in the custody of a gaoler or other person by any other means whatsoever, it seems to be agreed that the person who had them in custody is in no case punishable for an escape, until it be presented. (1) But it is laid down as a rule that though, where an escape is fineable, the presentment of it is traversable; yet that where the offence is amerciable only, there the presentment is of itself conclusive ; such amerciaments being reckoned amongst those minima de quibus non curat lex :(m) and this distinction is said to be well warranted by the old books. (n)

It should be observed that it is laid down in the books that a person who has suffered another to escape cannot be arraigned for such escape as for felony, until the principal be attainted; on the ground that he is only punishable in this degree as an accessory to the felony, and that the general rule is, that no accessory ought to be tried until the principal be attainted; (o) but that he may be

(d) Staundf. P. C. 33. Hale 602. (i) Staundf. P. C. 34. 1 Hale 599. 2 Hawk. P. C. c. 19. s. 6, 13.

603. (e) 2 Hawk. P. C. c. 19. s. 12, 13. (K) 2 Hawk. P. C. c. 19. s. 15.

Uf) Staundf. P. C. 33. I Hawk. P. (1) Id. ibid. s. 16. C. c. 28. S. 11, 12. 2 Hawk. P. C. c. (m) Staundf. P. C. c. 32. p. 36. 19. s. 6, 13.

in) 2 Hawk. P. C. c. 19. s. 21. and (8) Rex v.the Gaoler of Shrewsbury, see post, 376. as to escapes fineable or I Str. 532. where the court refused to amerciable. graut an attachment against the gaoler (0) See ante, 36. et seq. By the 1 for a voluntary escape of one in exe- Ann. st. 2. c. 9. an accessory may be cution for obstructing an excise officer tried where the principal offender has in the execution of his office, but or- been convicted, &c. though not atdered him to shew cause why there tainted. Ante, p. 38. Io the Cro. Circ. should not be an inforination.

Ass. 338 is an indictment as for a mis(h) 2 Hawk. P. C. c. 19. s. 15. demeanor against a gaoler, for wilfully

Of the indictment for an escape.

indicted and tried for a misprision before any attainder of the principal offender; for, whether such offender were guilty or innocent, it was a high contempt to suffer him to escape. If, however, the commitment were for high treason, and the person committed actually guilty of it, it is said that the escape is immediately punishable as high treason also, whether the party escaping be ever convicted of such crime or not; and the reason given is, that there are no accessories in high treason. (0)

Every indictment for an escape, whether negligent or voluntáry, must expressly shew that the party was actually in the defendant's custody for some crime, or upon some commitment upon suspicion ;(p) and judgment was arrested upon an indictment which stated that the prisoner was in the defendant's custody, and charged with a certain crime, but did not state that he was committed for that crime; for a person in custody may be charged with a crime, and yet not be in custody by reason of such charge.(9) But where a person was committed to the custody of a constable by a watchman, as a loose and disorderly woman and a streetwalker, it was holden, upon an indictment against the constable for discharging her, that by an allegation of his being charged with hér, « so being such loose, &c.” it was sufficiently averred that he was charged with her “as such loose, &c.;" and it was also holden not to be necessary to aver that the defendant knew the woman to be a street-walker.(r) And every indictment should also shew that the prisoner went at large:(s) and also the time when the offence was committed for which the party was in custody; not only that it may appear that it was prior to the escape, but also that it was subsequent to the last general pardon.(t) . If the indictment be for a voluntary escape, it must allege that the defendant feloniously and voluntarily permitted the prisoner to go at large ;(u) and must also shew the species of crime for which the party was imprisoned; for it will not be sufficient to say, in general, that he was in custody for felony, &c.(w) But it is quèstionable whether such certainty, as to the nature of the crime, be necessary in an indictment for a negligent escape; as it is not in such case material whether the person who escaped were guilty or not. (x)

By the statute Westminster 1. c. 3. the proceedings and trial for the offence of an escape were to be had before the justices in eyre: but it was adjudged that the jurisdiction of the Court of King's Bench was not restrained by that statute, that court being permitting a prisoner to escape who ments, Rex v. Boyall, 2 Burr. 839. was under sentence of imprisonment (8) 2 Hawk. P. C. c. 19. s. 14., where for the term of six months, after a con- it is said that this is most properly exviction of grand larceny: but it seems pressed by the words exivit ad largum. that it ought to have been laid as a (1) 2 Hawk. P. C. c. 19. s. 14. But felony. See 2 Starkie, Crim. Plead. upon an indictment for an escape the 600, note (6) referring to Rex v. Bur. court will not intend a pardon; it must ridge, 3 P. Wins. 497.

be shewn by the defendant, by way of (0) 2 Hawk. P. C. c. 19. s. 26. excuse. Rex v. Fell, I Lord Raym. (p) Id. ibid. s. 14.

494.
(9) Rex u. Fell, i Lord. Rayin. 424. (u) Felonicè et voluntarie A, B. ad
2 Salk. 272.

larguin ire permisit.
(r) Rex v. Bootie, 2 Burr. 864.; and (w) 2 Hawk. P. C. c. 19. s. 14.
see as the sufficiency of such aver (2) Id. ibid.

Of the trial.

itself the highest court of eyre.(y) The 31 Edw. 3. c. 14. enacts that the escape of thieves and felons, and the chattels of felons, &c. from thenceforth to be judged before any of the King's justices, shall be levied from time to time, &c. by which it seems to be implied that other justices, as well as those in eyre, may take cognizance of escapes : and it is certain that justices of gaol delivery may punish justices of peace for a negligent escape, in admitting persons to bail who are not bailable.(z) The 1 Rich. 3. c. 3. en. acts that justices of peace shall have authority to enquire in their sessions of all manner of escapes of every person arrested anı. imprisoned for felony.

The enactment of the 4 Geo. 4. c. 64 s. 44., as to the evidence Evidence. by the certificate of the clerk of assize, or clerk of the court in which the offender was convicted, has been already mentioned. (1)

In considering of the punishment for this offence, it will be Punishment.necessary again to attend to the distinction between a voluntary and negligent escape.

It seems to be generally agreed that a voluntary escape amounts In cases of voto the same kind of crime as the offence of which the party was

luntary escape. guilty, and for which he was in custody; whether the person escaping were actually committed to some gaol, or under an arrest only, and not committed ; and whether he were attainted, or only accused of such crime, and neither indicted nor appealed.(a) But the voluntary escape of a felon will be within the benefit of clergy, though the felony for which the party was in custody be ousted.() An escape suffered by one who wrongfully takes upon him the keeping of a gaol seems to be punishable in the same manner as if he were rightfully entitled to the custody; for the crime is in both cases of the same ill consequence to the public. (c) But no one is punishable in this degree for a voluntary escape but the person who is actually guilty of it: therefore, the principal gaoler is only fineable for a voluntary escape suffered by his deputy.(d) One voluntary escape is said to amount to a forfeiture of a gaoler's office.(e)

No escape will amount to a capital offence unless the cause for which the party was committed were actually such at the time of the escape: its becoming a capital offence afterwards, as by the death of a party wounded at the time of the escape, but not then dead, will not be sufficient. (f)

Whenever a person is found guilty upon an indictment or pre- Of the punishsentinent of a negligent escape of a criminal actually in his cus- mene olicants tody, he ought to be condemned in a certain sum, to be paid to escapes.

(y) Stauodf. P. C. c. 32. p. 35. Eo on an indictment of death, and only que le banke le roy est un eire, & plus committed till the year and day should haut que un eire, car si le eire sea in be passed, to give the widow or heir un county, et le banke le roy veigne la, an opportunity of bringing their aple eire cessera.

peal. Id. ibid. (2) 2 Hawk. P. C. c. 19. s. 19. ante, (b) i Hale 599. 371.

(c) 2 Hawk. P. C. c. 19. s. 23. (1) Ante, 368.

(d) Rex v. Fell, i Lord Raym, 424. (a) 2 Hawk, P. C. c. 19. S. 22. And 2 Salk. 272. i Hale 597, 598. it is said to be no excuse of such escape (e) 2 Hawk. P. C. c. 19. s. 30. that the prisoner had been acquitted (f) 2 Hawk. P. C. c. 19. s. 25.

ofte regule should fecitestore the het wo be

the King as a fine.(g) And it seems that by the common law the penalty for suffering the negligent escape of a person attainted was of course a hundred pounds, and for suffering such escape of a person indicted, and not attainted, five pounds; and that if the person escaping were neither attainted nor indicted, it was left to the discretion of the court to assess such a reasonable forfeiture as should seem proper. And it seems also, that if the party had escaped twice, these penalties were of course to be doubled : but that the forfeiture was no greater for suffering a prisoner to escape who had been committed on two several accusations, than if he had been committed but on one.(h) It is the better opinion that one negligent escape will not amount to a forfeiture of a gaoler's office; yet if a gaoler suffer many negligent escapes, it is said that he puts it in the power of the court to oust him of his office

at discretion.(2) Punishment of Some regulations by statutes respecting the punishment of negnegligent es

·

licent escones ohould.

ligent escapes should also be noticed. capes by sta. " tutes.

The 5 EN. 3. c. 8. recites, that persons indicted of felonies had 5 Ed. 3. c. 8. removed the indictments before the King, and there yielded themas to the mar- selves, and had been incontinently let to bail by the marshals of

h. the King's Bench; and enacts, that such persons shall be safely

and surely kept in prison : and (after providing for the manner of such confinement, &c.) further enacts, that if any such prisoner be found wandering out of prison by bail or without bail, the marshal being found guilty, shall have a year's imprisonment, and be

ransomed at the King's will. 56 G. 3. c. 63. The statute 56 Geo. 3. c. 63., which was passed for regulating as to persons having the cus- the general Penitentiary for convicts at Millbank, enacts that if tody of con- any person having custody of any convict, or being employed by

in the ge- the person having such custody, in the manner mentioned in the neral penitentiary.

act, shall negligently permit any such convict to escape ; such person so permitting shall be guilty of a misdemeanor; and being lawfully convicted shall be liable to fine or imprisonment, or to both, at the discretion of the court.(k)

It has been holden that a negligent escape may be pardoned by the King before it happens, but that a voluntary one cannot be so pardoned.(1) Upon an indictment for an escape the court will not intend a pardon; but it must be shewn by the defendant by way of excuse.(m)

sbals of the

hal bied at the su Geory for every corte

victs

(g) 2 Hawk. P. C. c. 19. s. 31., where () 56 Geo. 3. c. 63. s. 44. And by the author says, “it seems most pro- S. 45. in any prosecution agaiost any “ perly to be called a fine. But this person concerned in the escape, &c. “ does not clearly appear from the old or aiding, &c. a copy properly attested “ books; for in some of them it seems of the order of commitment to the s' to be taken as a fine, in others as an Penitentiary is made evidence that the "amerciament; and in others it is person in question was so ordered to “spoken of generally as the imposition confinement, after proof that such per“ of a certain sum, and without any son is the same that was delivered with "mention of cither fine or amercia- the order. "ment."

(1) 2 Hawk. P. C. c. 19. 9. 32. and (l) 2 Hawk. P. C. c. 19. s. 33. more fully Id. c. 37. s. 28. (i) Id. ibid. s. 30,

(m) Rexv. Pell, i Lord Raym. 424.

SECT. II.

Of Escapes suffered by Private Persons.

be

The law with respect to escapes suffered by private persons is in general the same as in relation to those suffered by officers : it will be sufficient, therefore, to mention shortly the circumstances under which it is considered that a private person may be guilty of an escape, and the punishment to which he will be liable.

It seems to be a good general rule, that wherever any person In what cases has another lawfully in his custody, whether upon an arrest made a private perby himself or another, he is guilty of an escape if he suffer him to

guilty of an go at large before he has discharged himself, by delivering him escape. over to some other who by law ought to have the custody of him. And if a private person arrest another for suspicion of felony, and deliver him into the custody of another private person, who receives him and suffers him to go at large, it is said that both of them are guilty of an escape; the first, because he should not have parted with him till he had delivered him into the hands of a public officer; the latter, because, having charged himself with the custody of a prisoner, he ought, at his peril, to have taken care of him.(n)

But where a private person, having made an arrest for suspicion of felony, delivers over his prisoner to the proper officer, as the sheriff or his bailiff, or a constable, from whose custody the prisoner escapes, he will not be chargeable. He cannot, however, exclude himself from the escape by alleging that he delivered the prisoner over to an officer, without shewing to whom, in particular, by name, he so delivered him, that the court may certainly know who is answerable. (o)

If an escape suffered by a private person were voluntary, he is Punishment of punishable as an officer would be for the same offence; (p) and if por

if private per

sons for esit were negligent, he is punishable by fine and imprisonment, at capes. the discretion of the court. (9)

(n) 2 Hawk. P.C. c. 20. s. 1, 2. I shall be bound to keep him till the Hale. 595. Sum. 112.

next gaol delivery: but he says, “If (0) 2 Hawk. P. C. c. 20. s. 3, 4. i “such township refuse also to receive Hale 594, 595. Staund. P. C. 34. Sum. “him, I do not see how the person who 112, 114. Hawkins, id. s. 4. says, that “made the arrest can discharge himself if no officer will receive such prisoner “of him before the next gaol delivery; into his .custody, it seems to be the “unless he can in the mean time prosafest way to deliver him into the cus- “cure him to be bailed.” tody of the township where the person (p) Ante, 375. who arrested lim lives, or perhaps of (9) 2 Hawk. P. C. c. 20. s. 6. that where the arrest was made, which

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