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necessity of an inevitable accident happening, without the con. trivance or fault of the prisoner; as if the prison should be set on fire by accident, and he should break it open to save his life. (s) It seems also that no breach of prison will amount to felony, unless Escape of the the prisoner escape. (1)

party. A party may be arraigned for prison-breaking before he is con- Of the provicted of the crime for which he was imprisoned, (the proceeding ceedings. differing in this respect from cases of escape or rescue,) on the ground that it is not material whether he be guilty of such crime or not, and that he is punishable as a principal offender in respect of the breach of prison itself. (u) But if the party has been indicted and acquitted of the felony for which he was committed, he is not to be indicted afterwards for the breach of prison; for though, while the principal felony was untried, it was indifferent whether he were guilty of it or not, or rather the breach of prison was a presumption of the guilt of the principal offence, yet, upon its being clear that he was not guilty of the felony, he is in law as a person never committed for felony; and so his breach of prison is no felony. (w)

The indictment for a breach of prison, in order to bring the of the indictoffender within the intention of the statute, must specially set ment. forth his case in such manner that it may appear that he was lawfully in prison, and for such a crime as requires judgment of life or member: and it is not sufficient to say in general “ that he felo

niously broke prison ;” (x) as there must be an actual breaking to constitute the offence. (y) So it is held in all the books to be necessary that such breaking be stated in the indictment. (z)

By the 4 Geo. 4. c. 64. s. 44. the certificate of the clerk of assize, Evidence. or other clerk of the court in which the offender was convicted, together with due proof of the identity of the person, is made evidence of the nature and fact of the conviction; and of the species and period of confinement to which such person was sentenced. (m)

The offence of prison-breaking and escape, by a party lawfully of the punishcommitted for any treason or felony, is, as we have seen, of the ment. degree of felony, (a) and will of course be punishable as such : but it should be observed, that it is a felony within clergy, though the principal felony for which the party was committed were ousted of clergy, as in case of robbery or murder. (b) And in this it differs from the offence of a voluntary escape, which is punishable in the same degree as the offence for which the party suffered to escape was in custody. (c) Where the prison-breaking is by a party lawbut also in the prisoner that escapes principal felony, he may plead that by means of this breach, as he con- acquittal of the principal felony, in sents to the breach of the prison by bar to the indictinent for the breach taking advantage of it.

of prison. (s) i Hale G11. 2 Inst. 590. Summ. (X) 2 Hawk. P. C. c. 18. s. 20. 108.

(y) Ante, 380. (1) 2 Hawk. P. C. c. 18. s. 12.

(z) Rex v. Burridge, 3 P. Wms. 483. (u) 2 Inst, 592. 1 Hale 611. 2 Staupdf. 31. a. 2 Inst. 589, et seq. Hawk. P. C. c. 18. s. 18.

(m) Ante, 369. (w) i Hale 612. where the learned (a) Ante, 378. writer also says, that if the party should (6) 1 Hale 612. be first indicted for the breach of pri- (c) Ante, 375. son, and then be acquitted of the

fully confined upon any inferior charge, it is punishable as a high misprision, by fine and imprisonment. (d)

As prison-breach is a common law felony, if the person breaking prison is a convicted felon, it is punishable as such. The prisoner. was found guilty upon an indictment which charged, that he had been tried and convicted of horse-stealing, and sentenced to suffer death; and that his Majesty extended his mercy to him, on condition of being imprisoned and kept to hard labour, in the House of Correction at Brixton-hill, for two years : that he was committed to, and lodged and confined in the said House of Correction; and that he being so convicted and committed, before the expiration of the two years, viz, on the 4th December, 1820, at, &c. with force and arms did wilfully and feloniously break the said House of Correction, and make his escape from and out of it, and go at large, contrary to the statute, &c. and against the peace, &c. The Judges, upon a case reserved, were unanimously of opinion, that this was punishable as a common law felony by imprisonment not exceeding a year, to begin from the passing of the sentence; and that, if thought right, the prisoner might be whipped three times

in addition to the imprisonment.(e) 59 Geo. The statute 59 Geo.3. c. 11., being an act for the better regulaConvicts or

tion of the general penitentiary at Millbank, enacts, that any condered to be confined in the vict ordered to be confined in the said penitentiary, who shall at penitentiary at any time during the term of such confinement break prison, or breaking pri- escape from the place of confinement, or in the conveyance son, or escap- to such place of confinement, or from the person or pering, or attempt- sons having such convict in lawful custody, shall be punished by ing so to do.

an addition, not exceeding three years, to the term for which such convict at the time of the breach of prison or escape was subject to be confined; and if such convict so punished by such addition to the term of confinement shall afterwards be convicted of a second escape or breach of prison, then that such convict shall be adjudged guilty of felony, without benefit of clergy. And it further enacts, that if any convict, who shall be ordered to be confined in the said penitentiary, shall at any time during the term of such confinement attempt to break prison, or escape from the place of his or her confinement, or shall forcibly break out of his or her cell, or shall make any breach therein with intent to escape therefrom, such offender, being convicted thereof, shall be punished by an addition, not exceeding six calendar months, to the term for which he or she at the time of committing any such offence was subject

to be confined. Prison-break- Before this Chapter is concluded it should be observed, that, by ing, by statutes statutes which relate only to particular crimes, the offence of prirelating to par son-breaking is, in certain cases, made the subject of special enact

ment, and, in some instances, of capital punishment; and will be
mentioned in the course of the Work, in the order in which the
crimes are treated of to which those statutes relate.

(d) 2 Hawk. P. C. c. 18. s. 21. alluded to as applicable to this case.

(e) Rex v. Haswell, East. T. 1821. That statute, however, (except s. 7.) Russ. and Ry. 458. It does not ap- bas been repealed by 4 Geo. 4. c. 64. pear that the 31 Geo, 3. c. 46. was




Rescue, or the offence of forcibly and knowingly freeing another Of rescue. from arrest or imprisonment, is, in most instances, of the same nature as the offence of prison-breaking, which has been treated of in the preceding Chapter.

Thus it is laid down, that whatever is such a prison that the of the sort of party himself would, by the common law, be guilty of felony in prison, and breaking from it, in every such case a stranger would be guilty of sonment and as high a crime at least in rescuing him from it. But though, upon breaking. the principle that wherever the arrest of a felon is lawful the rescue of him is a felony, it will not be material whether the party arrested for felony, or suspicion of felony, be in the custody of a private person, or of an officer ; yet, if he be in the custody of a private person, it seems that the rescuer should be shewn to have knowledge of the party being under arrest for felony.(a) In cases where the imprisonment is so far groundless or irregular, or for such a cause, or the breaking of it is occasioned by such a necessity, &c. that the party himself breaking the prison, is, either by the common law, or by the statute 1 Edw. 2. st. 2. De frangentibus prisonam, saved from the penalty of a capital offender; a stranger who rescues him from such an imprisonment is, in like manner, also excused. (b)

It has been stated in the preceding Chapter, that, where a person A rescuer may committed for high treason breaks the prison and escapes, letting be guilty of

high treason. out other persons, committed also for high treason, he seems to be guilty of high treason, in case his intention in breaking the prison were to favour the escape of such other persons as well as his own: (c) and it is clear that a stranger who rescues a person committed for, and guilty of, high treason, knowing him to be so committed, is, in all cases, guilty of high treason.(d) It has been holden also, that he will be thus guilty whether he knew that the party rescued were committed for high treason or not: and that he would, in like manner, be guilty of felony by rescuing a (a) i Hale 606.

(c) Ante, 380. (6) 2 Hawk. P. C. c. 21. s. 1, 2. (d) 2 Hawk. P. C. c. 21. S. 7. Inst. 589. Staundf. P. C. 30, 31. Ante, Staundf. P. C. 11, 82. Sum. 109. I


Hale 237.

378. et seq.

Of the pro

cases of rescue.

felon, though he knew not that the party was imprisoned for

felony. (e) A breaking of As the party himself seems not to be guilty of felony by breakthe prison is ing the prison, unless he actually go out of it; (f) so the breaking not felony, of a prison by a stranger, in order

to free the prisoners who are in unless a prisoner escape. it, is said not to be felony, unless some prisoner actually by that

means get out of prison. (g).

The sheriff 's return of a rescue is not of itself sufficient to put ceedings in

the party to answer for it as a felony, without indictment or presentment. (h) And it is the better opinion that he who rescues one imprisoned for felony cannot be arraigned for such offence as a felony, until the principal offender be first attainted; unless the person rescued were imprisoned for high treason, in which case the rescuer may be immediately arraigned; all being principals in high treason. But it is said that he may be immediately proceeded against for a misprision only if the king please : (i) and if the principal be discharged, or found guilty only of an offence not capital, such as petit larceny, &c. though the rescuer cannot be charged with felony, yet he may be fined and imprisoned for a

misdemeanor.() Of the indict

The indictment for a rescue, like that for an escape, (1) or for ment for a breaking prison, (m) must specially set forth the nature and cause

of the imprisonment, and the special circumstances of the fact in question. (n) And the word rescussit, or something equivalent to it, must be used to shew that it was forcible and against the will

of the officer who had the prisoner in his custody. (0) Of the punish- The rescue of one apprehended for treason is itself treason : and

the party rescuing one in custody for felony, or suspicion of felony, will, as we have seen, be guilty of a crime of the same kind; though not in all cases punishable in the same degree ; for the rescuer will be entitled to his clergy, though the crime of the prisoner rescued were not within clergy. (p) Accordingly, in a late case it was held, that rescuing a person under commitment for burglary was not a transportable offence, but was punishable


ment for a rescue.

(e) Rex v. Benstead, Cro. Car. 583. the Chief Justice of the Common Pleas, where it is said that it was resolved by (that place being at the time vacant,) ten of the Judges, (on a special com- in Limerick's case, Kel. 77. mission,) serialim, that the breaking (f) Ante, 381. of a prison where traitors are in dur- (g) 2 Hawk. P. C. c. 18. s. 12.; c. 21. ance, and causing them to escape, was S. 3. treason, although the parties did not (h) 1 Hale 606. know that there were any traitors (1) 2 Hawk. P. C. c. 2. S. 8. there: and that, in like manner, to (k) i Hale, 598, 599. break a prison whereby felons escape, (1) Ante, 374. is felony, without knowledge of their (m) Ante, 381. being imprisoned for such offence. (n) 2 Hawk. P. C. c. 21. s.5. In Rex And see i Hale 606. But Hawkins, v.Westbury, 8 Mod. 357. it was holden, (P. C. c. 21. s. 7.) says, that this opi- that an indictment for a rescue of nion is not proved by the authority of goods levied must set forth the fieri the case, (i Hen. 6. 5.) on which it facias at large; and that setting forth seems to be grounded. It should be quòd cum virtute brevis &c. de fieri fa mentioned, however, that Benstead's cias, and a warrant thereon he, levied, case is spoken of in Rex v. Burridge, &c. and that the defendant rescued 3 P. Wms. 468. as having been cited them, is not sufficient. and allowed to be law at an assembly (0) Rex v. Burridge, 3 P. Wms. 483. of all the Judges of England, except (p) i Hale 607.

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only as a felony, within clergy, at common law.(a) Subsequently, however, to this decision the statute 1 and 2 Geo. 4. c. 88. s. 1. 1 and 2 Geo. 4. has enacted, “ that if any person shall rescue, or aid and assist in c. 88. s. I.

rescuing, from the lawful custody of any constable, officer, head“ borough, or other person whomsoever, any person charged with,

or suspected of, or committed for any felony, or on suspicion “ thereof, then, if the person or persons so offending shall be con“victed of felony, and be entitled to the benefit of clergy, and be “ liable to be imprisoned for any term not exceeding one year, it “ shall be lawful for the court, by or before whom any such person “ or persons shall be convicted, to order and direct, in case it shall “ think fit, that such person or persons, instead of being so fined " and imprisoned as aforesaid, shall be transported beyond the seas for seven years, or be imprisoned only, or be imprisoned and

kept to hard labour in the common gaol, house of correction, or “penitentiary house, for any term not less than one, and not ex“ ceeding three years." (b)

Where the party rescued was in custody for a misdemeanor only, the rescuer will be punishable as for a misdemeanor; for, as those who break prison are punishable for a high misprision, by fine and imprisonment, in those cases wherein they are saved from judgment of death by the statute 1 Edw. 2. stat. 2. De frangentibus prisonam; so also are those who rescue such prisoners, in the like cases, punishable in the same manner. (9)

The rescue of a prisoner, in any of the superior courts, committed by the justices, is a great misprision; for which the party, and the prisoner, (if assenting,) will be liable to be punished by imprisonment for life, forfeiture of lands for life, and forfeiture of goods and chattels; though no stroke or blow were given. (r)

The aiding and assisting a prisoner to escape out of prison, by Of aiding a whatever means it may be effected, is an offence of a mischievous prisoner

to nature, and an obstruction to the course of justice: and the assist- escape. ing a felon in making an actual escape, is an offence of the degree of felony.(s) In a case which underwent elaborate discussion, the court of King's Bench held, that where a person assisted a prisoner who had been convicted of felony within clergy, and, having been sentenced to be transported for seven years, was in custody under such sentence, to escape out of prison, the person so assisting was an accessory to the felony after the fact. (t) The court proceeded upon the ground that one so convicted of felony, within the benefit of clergy, and sentenced to be transported for seven years, continues a felon till actual transportation and service pursuant to the sentence; and that the assistance given in this case amounted, in law, to a receiving, harbouring, or comforting, such felon.(u) But

(a) Rex v. Stanley and others, Russ. (9) 2 Hawk. P. C. c. 21. s. 6. 4 and Ry. Cr. Cas. 432.

Blac. Com. 130. (b) The second section of this act (r) 1 East. P. C. c. 8. s. 3. p. 408, subjects a party assaulting any con- 6 Bac. Abr. Rescue, (C.) 3 Inst. stable or other person, in order to pre- 141. 22 Edw. 3. 13. vent an apprehension on charge or (8) Rex v. Tilley, 2 Leach 671. suspicion of felony, to punishment by (1) Rex v. Burridge, 3 P. Wms. 439. hard labour. See post, Book III. Chap. (u) The assistance, as stated in the xi. s. 2. Of Aggravated Assaults. special verdict in this case, was not

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