application of the same; and 4, the conversion of the same in violation of good faith, and contrary to the purpose specified.

The purpose specified is matter of description, and must therefore be proved as laid. Thus, an allegation that the prosecutor directed the defendant to invest the proceeds of certain valuable securities in the funds, is not proved by evidence of a direction to invest them in the funds, in the event of an unexpected accident occurring. White's case, 4 C. & P. 46.°

An indictment on the 7 and 8 Geo. 4, c. 29, s. 49, against a broker for embezzlement of a security for money, must allege a written direction to him as to the application of the proceeds. Reg. v. Golde, 2 Moo. & R. 425.

EMBEZZLEMENTS OF MINOR IMPORTANCE.

Statutory provisions are made in cases of various embezzlements, a few of which it will be sufficient to notice briefly in this place.

Embezzling naval or military stores.] By the 4 Geo. 4, c. 53, every person who shall be lawfully convicted of stealing or embezzling his Majesty's ammunition, sails, cordage, or naval or military stores, or of procuring, counselling, [*457] aiding or abetting any such offender, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned and kept to hard labour in the common gaol or house of correction, for any term not exceeding seven years. This statute does not seem to extend to Ireland. 1 Gabb. Crim. Law of Ireland, 632. See also the 9 and 10 Wm. 3, c. 41, and 39 and 40 Geo. 3, c. 89, extended to Ireland by the 52 Geo. 3, c. 12. By the annual mutiny acts, persons employed in the care of military stores embezzling the same, may be tried by a court-martial and transported for life, or for any less term of years; or fined or imprisoned.

Embezzling warehoused goods.] By the 3 and 4 Wm. 4, c. 57, s. 41, it is enacted, that if it shall at any time happen that any embezzlement, waste, spoil, or destruction shall be made, of or in any goods or merchandize, which shall be warehoused in warehouses under the authority of that act, by or through any wilful misconduct of any officer or officers of customs or excise, such officer or officers shall be guilty of a misdemeanor, and shall, on conviction, suffer such punishment as may be inflicted by law in cases of misdemeanor.

Embezzlement by pensioners, &c. in Greenwich hospital.] The embezzlement by any pensioner or nurse of Greenwich hospital, of any clothes, &c., belonging to the hospital, is made punishable, by the 54 Geo. 3, c. 110, s. 1, by six months' imprisonment in the gaol of the town, &c., in which such pensioner, &c., shall be apprehended.

• Eng. Com. Law Reps. xix. 268.

An escape by a person in custody on a criminal charge may be either with or without force, or with or without the consent of the officer or other person who has him in his custody.

Proof of escape by the party himself.] All persons are bound to submit themselves to the judgment of law, and therefore, if any one, being in custody, frees himself from it by any artifice, he is guilty of a high contempt, punishable by fine and imprisonment. (1) 2 Hawk. P. C. c. 17, s. 5. And if by the consent or negligence of the gaoler, the prison doors are opened, and the prisoner escapes, without making use of any force or violence, he is guilty of a misdemeanor. Id. c. 18, s. 9; 1 Hale, P. C. 611; 1 Russ. by Grea. 416.

Proof of escape-party himself-proof of the criminal custody-venue.] It must be proved that the party was in custody upon a criminal charge, otherwise the escape is not a criminal offence. But as to this see Reg. v. Allan, Carr, & M. 295, post, title, Rescue. Before the passing of the 4 Geo. 4, c. 64, (E.) it was decided that a certificate of the prisoner having been convicted, granted by the officer of the court, was not evidence. R. v. Smith, 1 Russ. by Grea. 417.

a

But now, by the 44th section of the above statute, it is enacted, "that any offender 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 in case of any prosecution for any such escape, attempt to escape, breach of prison, or rescue, either against the offender escaping or attempting to escape, or having broken prison, or having been rescued, or against any other person or persons concerned therein, or aiding, abetting, or assisting the same, a certificate given *by the clerk of assize, [ *459 ] or other clerk of the court in which such offender shall have been convicted, shall, together with due proof of the identity of the person, be sufficient evidence to the court and jury of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced."

A certificate under this statute should set forth the effect and substance of the conviction, and not merely state it to have been for felony. Watson's case, R. & R. 468.b

(1) People v. Tompkins, 9 Johns. 70. People v. Washburn, 10 Johns. 160. People v. Rose, 12 Johns. 339. State v. Doud, 7 Conn. 384.

a

Eng. Com. Law Reps. xli. 164.

1 Eng. C. C. 468.

Proof of escape suffered by an officer.] In order to render a person suffering an escape liable, as an officer, it must appear that he was a known officer of the law. Thus where the constable of the Tower committed a prisoner to the house of a warder of the Tower, the latter was held not to be such an officer as the law took notice of, and that he could not therefore be guilty of a negligent escape. 1 Chetw. Burn, Escape, 930. But whoever de facto occupies the office of gaoler, is liable to answer for such an escape, and it is no way material whether his title to such an office be legal or not. Hawk. P. C. b. 2, c. 19, s. 28.

It is said by Hawkins to be the better opinion that the sheriff is as much liable to answer for an escape suffered by his bailiff, as if he had actually suffered it himself; and that either the sheriff or the bailiff may be charged for that escape. Hawk. P. C. b. 2, c. 19, s. 28; 1 Hale, P. C. 597; 1 Russ. by Grea. 421. But this is opposed to the authority of Lord Holt, who says, that the sheriff is not answerable criminally for the acts of his bailiff. Fell's case, 1 Salk. 272; 1 Lord Raym. 424.

Proof of escape suffered by an officer-proof of arrest.] In case of a prosecution against an officer, either for a voluntary or negligent escape of a prisoner in custody for a criminal offence, it must appear that there was an actual arrest of the offender. Therefore, where an officer having a warrant to arrest a man, sees him in a house and challenges him to be his prisoner, but never actually has him in his custody, and the party gets free, the officer cannot be charged with the escape. 2 Hawk. P. C. c. 19, s. 1. See Simpson v. Hill, 1 Esp. 431.

Proof of arrest-must be justifiable.] The arrest must be justifiable in order to render the escape criminal; and it is laid down as a good rule, that whenever an imprisonment is so far irregular as that it is no offence in the prisoner to break from it by force, it will be no offence in the officer to suffer him to escape. 2 Hawk. P. C. c. 29, s. 2. A lawful imprisonment must also be continuing at the time of the escape; and therefore, if an officer suffers a criminal who was acquitted, and detained for his fees, to escape, it is not punishable. Id. s. 3, 4. Yet, if a person convicted of a crime be condemned to imprisonment for a certain time, and also till he pays his fees, and he escape after such time is elapsed, without paying them, perhaps such escape may be criminal, because it was part of the punishment that the imprisonment should continue till the fees were paid. But it seems that this is to be intended where the fees are due to others as well as to the gaoler, Id. s. 4.

[*460] *Proof of voluntary escape.] It is not every act of releasing a prisoner that will render an officer subject to the penalties of voluntarily permitting an escape. The better opinion appears to be that the act must be done malo animo, with an intent to defeat the progress of justice. Thus it is said by Hawkins, that it seems agreed that a person who has power to bail is guilty only of a negligent escape, by bailing one who is not bailable; neither, he adds, is there any authority to support the opinion that the bailing of one who is not bailable, by a person who has no power to bail, must necessarily be esteemed a voluntary escape. And there are cases in which the officer has knowingly given his prisoner more liberty than he ought, as to go out of prison on promise to return; and yet this seems to have been adjudged to be only a negligent escape. The judgment to be made, adds Hawkins, of all offences of this kind must depend on the circumstances of the case; as the heinousness of the crime with which the prisoner is charged, the

notoriety of his guilt, the improbability of his returning, and the intention and motives of the officer. Hawk. P. C. b. 2, c. 19, s. 10; 1 Russ. by Grea. 419.

Proof of voluntary escape-retaking.] It is laid down in some books, that after a voluntary escape, the officer cannot retake the prisoner, by force of his former warrant, for it was by the officer's consent. But if the prisoner return, and put himself again under the custody of the officer, the latter may lawfully detain him, and bring him before a justice in pursuance of the warrant. 1 Burn. 930, title, Escape, citing Dalt. c. 169; 2 Hawk. c. 13, s. 9; 1 Russ. by Grea. 421. But Hawkins observes, that the purport of the authorities seems to be no more than this, that a gaoler who has been fined for such an escape shall not avoid the judgment by retaking the prisoner; and he adds, "I do not see how it can be collected from hence that he cannot justify the retaking him." Hawk. P. C. b. 2, c. 19, s. 12.

Proof of negligent escape.] A negligent escape is where the party arrested or imprisoned escapes against the will of him that arrested or imprisoned him, and is not freshly pursued and taken before he is lost sight of. Dalt. c. 159; 1 Chetw. Burn. 930, Escape. Thus, if a thief suddenly, and without the assent of the constable, hang or drown himself, this is a negligent escape. Id. It is said by Lord Hale, that if a prisoner for felony breaks the gaol, this seems to be a negligent escape, because there wanted either that due strength in the gaol that should have secured him, or that due vigilance in the gaoler or his officers that should have prevented it. 1 Hale, 600. But upon this passage it has been remarked, that it may be submitted that it would be competent to a person charged with a negligent escape, under such circumstances, to show that all due vigilance was used, and that the gaol was so constructed as to have been considered by persons of competent judgment a place of perfect security. 1 Russ. by Grea. 420.

Proof of negligent escape-retaking.] Where a prisoner escapes through the negligence of the gaoler, but the latter makes such fresh pursuit as not to lose sight of him until he is retaken, this is said not to be an escape in law; but if he loses sight of him, and afterwards retakes him, the gaoler is liable to be punished criminally. It is *scarcely necessary to add, that the sheriff or gaoler, though [*461] he had no other means of retaking his prisoner, would not be justified in killing him in such a pursuit. Hawk. P. C. b. 2, c. 19, s. 12, 13; 1 Hale, P. C. 602.

Proof of escape from the custody of a private person.] The evidence upon an indictment against a private person, for the escape of a prisoner from his custody, will in general be the same as on an indictment against an officer. A private person may be guilty either of a voluntary or of a negligent escape, where he has another lawfully in his custody. Even where he arrests merely on a suspicion of felony (in which case the arrest is only justifiable if a felony be proved,) yet he is punishable if he suffer the prisoner to escape. Hawk. P. C. b. 2, c. 20, s. 2. And if, in such case, he deliver over the prisoner to another private person, who permits the escape, both, it is said, are answerable. Id. But if he deliver over his prisoner to the proper officer, as the sheriff or his bailiff, or a constable, from whose custody there is an escape, he is not liable. Id. s. 3; 1 Russ. by Grea. 425.

Punishment.] A negligent escape in an officer is punishable now by a fine. imposed on the party at the discretion of the court. 2 Hawk c. 19, s. 31; 1 Hale, P. C. 600.

A voluntary escape in an officer amounts to the same kind of offence, and is punishable in the same degree, as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. But the officer cannot be thus punished until after the original delinquent has been found guilty, or convicted; he may, however, before the conviction of the principal party, be fined and imprisoned for a misdemeanor. 2 Hawk. c. 19, s. 26; 1 Hale, 588, 9; 4 Comm. 130.

Where a private person is guilty of a negligent escape, the punishment is fine or imprisonment, or both. 2 Hawk. c. 20, s. 6.

As to escapes from Parkhurst prison, see the 1 & 2 Vict. c. 82, s. 53; from Pentonville prison, the 5 Vict. sess. 2, c. 29, ss. 24, 25; from Millbank prison, 6 & 7 Vict. c. 26, ss. 22, 23. For aiding escapes, see post, Prison Breach and Rescue.

Offence at common law.] The offence of falsely personating another for the purpose of fraud, is a misdemeanor at common law, and punishable as such. 2 East, P. C. 1010; 2 Russ. by Grea. 539. In most cases of this kind, however, it is usual, where more than one are concerned in the offence, to proceed as for a conspiracy; and very few cases are to be found of prosecutions at common law for false personation. In one case, where the indictment merely charged that the prisoner personated one A. B., clerk to H. H., justice of the peace, with intent to extort money from several persons, in order to procure their discharge from certain misdemeanors, for which they stood committed, the court refused to quash the indictment on motion, but put the defendant to demur. Dupee's case, 2 East, P. C. 1010. It is observed by Mr. East, that it might probably have occurred to the court that this was something more than a bare endeavour to commit a fraud by means of falsely personating another, for that it was an attempt to pollute public justice. Ibid.

Offence by statute.] In a variety of statutes against forgery, provisions are likewise contained against false personation, which in general is made felony. Thus personating the owner of stock, &c., is made felony by the 1 Wm. 4, c. 66, s. 7. Vide post, title Forgery.

Personating bail-acknowledging recovery, &c.] By the 1 Wm. 4, c. 66, s. 11, "if any person shall, before any court, judge, or other person lawfully authorized to take any recognizance or bail, acknowledge any recognizance or bail in the name of any other person not privy or consenting to the same, whether such recognizance or bail in either case be or be not filed; or if any person shall, in the name of any other person not privy or consenting to the same, acknowledge any fine, recovery,