Page images
PDF
EPUB

16 Geo. 2. c. 31. Aiding a pri

soner convicted of treason or

felony, or com

offences in an

attempt to escape.

[ocr errors]

wilfully aid or assist any such prisoner at large on parole in quitting any part of his Majesty's dominions where he may be on his parole, although he shall not aid or assist such person in quitting the coast of any part of his Majesty's dominions, shall be deemed guilty of aiding the escape of such person within the act. (a) There is a further provision as to assisting such prisoners in their escape after they have got upon the high seas. The third section of the statute enacts, "That if any person or persons owing allegiance "to his Majesty, after any such prisoner as aforesaid hath quitted "the coast of any part of his Majesty's dominions in such his escape as aforesaid, shall, knowingly and wilfully, upon the "high seas, aid or assist such prisoner in his escape to or towards any other dominions or place, such person shall also be adjudged guilty of felony, and be liable to be transported as aforesaid." It is also provided that offences committed upon the high seas, and not within the body of any county, may be tried in any county within the realm. (b) Previously to the passing of this act, upon an indictment for a misdemeanor in unlawfully aiding and assisting a prisoner at war to escape, where it appeared that such prisoner was acting in concert with those under whose charge he was placed, in order to effect the detection of the defendant, who was supposed to have been instrumental in the escapes of other prisoners, and the prisoner in question neither escaped nor intended to escape: it was held that the offence was not complete, and that a conviction for such offence was therefore wrong.(z)

66

[ocr errors]

66

[ocr errors]

66

[ocr errors]

The mere aiding an attempt of persons confined to make an escape, though no escape should ensue, is made highly penal by the 16 Geo. 2. c. 31., which enacts, that "if any person shall, by any means whatsoever, be aiding or assisting to any prisoner to mitted for those "attempt to make his or her escape from any gaol, although no "escape be actually made, in case such prisoner then was attainted or convicted of treason, or any felony, except petty larceny, or lawfully committed to or detained in any gaol, for treason or any felony, except petty larceny, expressed in the warrant of "commitment or detainer;" every person so offending shall, on conviction, be adjudged guilty of felony, and be transported for seven years. (f) And, "in case such prisoner then was convicted "or committed to or detained in any gaol for petty larceny, or "any other crime, not being treason or felony, expressed in the "warrant of his or her commitment or detainer as aforesaid, or then was in gaol upon any process whatsoever, for any debt, "damages, costs, sum or sums of money, amounting in the whole "to the sum of one hundred pounds;" every person so offending, and being convicted, shall be deemed guilty of "a misdemeanor, " and be liable to a fine and imprisonment." (g)

Aiding, &c. a prisoner convicted or committed for petty larceny, &c. or confined up

on process for any debt, &c. amounting to 100%.

(a) Sect. 2.

(b) Sect. 3. By sect 4. the act is not to prevent offenders from being prosecuted, as they might have been if the act had not been passed: but no persou prosecuted otherwise than under the provisions of the act is to be liable to be prosecuted for the same offence

under the act; and no person prosecuted under the act is, for the same offence, to be otherwise prosecuted.

(2) Rex v. Martin, Trin. T. 1811, Russ. & Ry. 196.

(ƒ) 16 Geo. 2. c. 31. s. 1.
(g) Id.

[ocr errors]
[ocr errors]

66

[ocr errors]

66

any disguise or to any prison, to facilitate the

instruments in

escape of prisoners, convicted of or committed for

treason or felony.

The statute further enacts, "That if any person shall convey, 16 Geo. 2. c. 31. or cause to be conveyed, into any gaol or prison, any vizor, or s. 2. Conveying "other disguise, or any instrument or arms proper to facilitate "the escape of prisoners, and the same shall deliver or cause to "be delivered to any prisoner in any such gaol, or to any other person there, for the use of any such prisoner, without the con"sent or privity of the keeper or under-keeper, of any such gaol or prison; every snch person, although no escape or attempt to escape be actually made, shall be deemed to have delivered such "vizor or other disguise, instrument or arms, with an intent to "aid and assist such prisoner to escape, or attempt to escape; "and in case such prisoner then was attainted or convicted of treason, or any felony, except petty larceny, or lawfully com"mitted to or detained in any such gaol for treason, or any felony 66 except petty larceny, expressed in the warrant of commitment "or detainer;" every person so offending, and being convicted, shall, in like manner, be deemed guilty of felony, and be transported for seven years. (h) And it proceeds to enact, that, "In Or to facilitate "case the prisoner to whom, or for whose use such vizor or dis- the escape of guise, instrument or arms, shall be so delivered, then was "convicted, committed, or detained for petty larceny, or any "other crime not being treason or felony, expressed in the warrant of commitment or detainer, or upon any process whatsoever, for any debt, damages, costs, sum or suins of money, 66 amounting in the whole to the sum of one hundred pounds;' every person so offending, and being convicted, shall be deemed guilty of a misdemeanor, and be liable to a fine and imprisonment.(i)

[ocr errors]

66

[ocr errors]

prisoners con

victed or committed for petty larceny, &c.;

or confined up-
on any process

for any debt,
&c. amounting
to 100%.

16 Geo. 2. c.31. any person charged with treason or felotempt to esca tempt to escape from a constable, &c. boat, &c. carrying felons for

s. 3. Assisting

Or from any

It is further enacted by this statute, "That if any person shall "aid or assist any prisoner to attempt to make his or her escape "from the custody of any constable, headborough, tithingman, or "other officer or person who shall then have the lawful charge of “such prisoner, in order to carry him or her to gaol, by virtue of CC a warrant of commitment for treason, or any felony, (except "petty larceny,) expressed in such warrant; or if any person shall "be aiding or assisting to any felon to attempt to make his escape "from on board any boat, ship, or vessel, carrying felons for transportation, or from the contractor for the transportation of transportation, "such felons, his assigns or agents, or any other person to whom or from the "such felon shall have been lawfully delivered, in order for transportation;" every person so offending, and being convicted, ation. shall be deemed guilty of felony, and be transported for seven years. (k)

66

[ocr errors]

It is provided by this statute, that there shall be no prosecution for any of these offences unless it be commenced within a year after the offence committed. (/)

And it is also enacted that if any person, ordered for transportation in pursuance of this act, shall return from transportation, or be at large in any part of Great Britain, without some lawful cause, before the expiration of the term for which such person

(h) 16 Geo. 2. c. 31. s. 2. (i) Id.

(k) 16 Geo. 2. c. 31.. s. 3.
(1) Sect. 4.

contractor for

their transport

Limitation of prosecutions..

Persons order

ed for trans portation by

this act, and returning, or being at large

before the ex- shall have been ordered to be transported, such person shall be piration of their liable to the same punishment, and methods of prosecution, trial, and conviction, for so returning or being at large, as other felons transported, or ordered to be transported, were liable by the laws then in force.

sentence.

Cases upon the

16 Geo. 2. c. 31.

It should be observed, that the second section of this statute, A commitment relating to the conveying of instruments, &c. into any prison, in on suspicion order to facilitate the escape of the prisoners, makes the offender only not within the act. guilty, in cases where the prisoner is committed to or detained in any gaol for treason or felony expressed in the warrant of commitment.(m) This has been holden to mean that the offence should be "clearly and plainly expressed;" so that a case where the commitment is on suspicion only is not within the act: for there are two kinds of commitments, which essentially differ from each other; as a prisoner may be admitted to bail on a commitment for suspicion only, but not on a commitment for treason or felony clearly and plainly expressed in the warrant. (2) And this doctrine was recognized and acted upon in a subsequent case of an indictment upon the third section of the statute, which relates to the aiding a prisoner to escape from the custody of a constable having charge of him by virtue of a warrant of commitment for felony "expressed" in such warrant. The indictment stated that the commitment was on "suspicion" of burglary, and the warrant produced in evidence at the trial corresponded with this statement: the point being reserved for the opinion of the Judges, they were unanimously of opinion that a commitment on suspicion was not within the statute. (o)

The statute

to cases where an actual escape is made.

A majority of the Judges decided a point of great importance in does not extend the construction of this statute, namely, that it does not extend to cases where an actual escape is made, but must be confined to cases of an attempt, without effecting the escape itself. They said, "the statute purports to be made for the further punishing "of those persons who shall aid and assist persons attempting to escape, and makes the offence felony; it creates a new felony : "but the offence of assisting a felon in making an actual escape 66 was felony before; and therefore does not seem to fall within "the view or intention of the Legislature when they made this "statute."(p) In this case it was also holden that an indictment on the statute charging the defendant with aiding and assisting a prisoner to attempt to make an escape, need not state that the party aided did attempt to make the escape; for he could not have aided if no such attempt had been made. (9) It has been decided that the delivering instruments to a prisoner, to facilitate his escape from prison, is within this statute, though the prisoner have been pardoned of the offence of which he was convicted, on condition of transportation. (a) And a party is within the act, though there be

An indictment

need not state

that the party aided did at

tempt to make

the escape.

(m) Ante, 389.

(n) Rex v. Walker, 1 Leach 97.
(0) Rex v. Greeniff, 1 Leach 363.;
and Rex v. Gibbon, 1 Leach 98, note
(a) S. P.

(p) Rex v. Tilley and others, 2

Leach 662. But see now 4 Geo. 4. c. 64. s. 43.

(q) Id. ibid.

(a) Rex v. Shaw and others, Mich. T. 1823. Russ. & Ry. 526.

CHAP. XXXIV.]

Statute 4 Geo. 4. c. 64.

no evidence that he knew of what specific offence the person he assisted had been convicted. (b)

In the same case it was also decided that the record of the conviction of the prisoner, whose escape was to have been effected, having been produced by the proper officer, no evidence was admissible to contradict what it stated; or to shew that it had never been filed among the records of the county; notwithstanding the indictment referred to it with a prout patet as remaining amongst those records. (c)

66

66

ing any dis-
s. 43. Convey-
guise, arms,
&c. proper for
an escape, made
tent to aid, &c.
an escape.

a sufficient in

The statute 4 Geo. 4. c. 64. s. 43., intituled "An act for the 4 Geo. 4. c. 64. "consolidating and amending the laws relating to the building, "repairing, and regulating, of certain gaols and houses of correc"tion in England and Wales, enacts, that if any person shall convey or cause to be conveyed into any prison, to which the act "shall extend, any mask, vizor, or other disguise, or any instru"ment or arms proper to facilitate the escape of any prisoners, "and the same shall deliver or cause to be delivered to any priother there for the person soner in any such prison, or to any ❝use of any such prisoner, without the consent or privity of the "keeper of such prison, every such person shall be deemed to "have delivered such vizor or disguise, instrument or arms, with "intent to aid and assist such prisoner to escape, or attempt to "escape; and if any person shall, by any means whatever, aid, Assisting any cape, felony. "and assist any prisoner to escape, or in attempting to escape prisoner to es"from any prison, every person so offending, whether an escape "be actually made or not, shall be guilty of felony; and, being "convicted thereof, shall be transported beyond the seas for any "term not exceeding fourteen years."

66

66

any

The same statute, (s. 44.) to the intent that prosecutions for Trial and evi"that offender escapes, breaches of prison, and rescues, may be carried on with dence. as little trouble and expense as possible, enacts, escaping, breaking prison, or being rescued therefrom, may be "tried either in the jurisdiction where the offence was committed, or in that where he or she shall be apprehended and retaken." And it also enacts that a certificate of the clerk of assize, or other clerk of the court in which the offender was convicted, together with due proof of the identity of the person, shall be sufficient evidence of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced. (i)

The late statute, 5 Geo. 4. c. 84., which was passed for the purpose of revising and consolidating the laws for regulating the transportation of offenders from Great Britain, and which will be more particularly noticed in the next Chapter, provides that if any person shall rescue or attempt to rescue, or assist in rescuing or attempting to rescue, any offender sentenced or ordered to be transported or banished, from the custody of the superintendant or overseer, or of any sheriff or gaoler, or other person, convey

(b) Rex v. Shaw and others, ante, note (a). An indictment at common law for aiding a prisoner's escape should state that the party knew of his offence. Rex v. Young, Trin. T.

1801, MS. Bayley, J.

(c) Rex v. Shaw and others, ante,

note (a).

(i) See this provision more at large ante, p. 368.

5 Geo. 4. c. 84.
s. 22. Persons
aiding the es-
cape of offend-
be transported,
ers, ordered to
from the custo-
dy of the over-
punishable as

rescuing or

seer, &c. made

if such offend

ers had been in the custody of a sheriff or gaoler.

ing, removing, &c. such offender, or shall convey or cause to be conveyed any disguise, instrument for effecting escape, or arms, to such offender, every such offence shall be punishable in the same manner as if such offender had been confined in a gaol or prison in the custody of the sheriff or gaoler, for the crime of which such offender shall have been convicted. (m)

The two following sections, (23 & 24,) relate to the indictment and the evidence, and will be found in the next Chapter.

(m) Sect. 29.

« EelmineJätka »