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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. (s) 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 her, 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. (t) And every indictment should also shew that the prisoner went at large: (u) 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. (v) If the indictment be for a voluntary escape, it must allege that the defendant feloniously and voluntarily permitted the prisoner to go at large; (m) 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. (a) But it is questionable 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. (y)

By the statute of Westminster 1, c. 3, the proceedings and trial of the 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 itself the highest Court of eyre. (2) 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. (a)

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. (b)

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 to the same kind of crime as the offence of which the party was voluntary

(8) Rex v. Fell, 1 Lord Raym. 424. 2 Salk. 272.

(t) Rex v. Bootie, 2 Burr. 864; and see as to the sufficiency of such averments, Rex v. Boyall, 2 Burr. 832.

(u) 2 Hawk. P. C. c. 19, s. 14, where it is said that this is most properly expressed by the words exivit ad largum.

(v) 2 Hawk. P. C. c. 19, s. 14. But upon an indictment for an escape the court will not intend a pardon; it must be shewn by the defendant, by way of

excuse. Rex'v. Fell, 1 Lord Raym. 424.
(w) Felonicè et voluntariè A. B. ad
largum ire permisit.

(x) 2 Hawk. P. C. c. 19, s. 14.
(y) Id. ibid.

(z) Staundf. P. C. c. 32, p. 35. Eo
que le banke le roy est un eire, & plus haut
que un eire, car si le eire sea in un county,
et le banke le roy veigne la, le eire cessera.
(a) 2 Hawk. P. C. c. 19, s. 19, ante,
420.
(b) Ante, 417.

escape.

Of the punishment in cases of negligent escapes.

Punishment

of negligent escapes by statutes.

5 Ed. 3, c. 8, as to the mar

shals of the King's Bench.

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. (c) But the voluntary escape of a felon was within the benefit of clergy, though the felony for which the party was in custody were ousted. (d) 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. (e) 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. (f) One voluntary escape is said to amount to a forfeiture of a gaoler's office. (g)

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. (h)

Whenever a person is found guilty upon an indictment or presentment of a negligent escape of a criminal actually in his custody, he ought to be condemned in a certain sum, to be paid to the King as a fine. (i) 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. (j) 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. (k)

Some regulations by statutes respecting the punishment of negligent escapes should also be noticed.

The 5 Ed. 3, c. 8, recites, that persons indicted of felonies had removed the indictments before the King, and there yielded themselves, and had been incontinently let to bail by the marshals of the King's Bench; and enacts, that such persons shall be safely

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(h) 2 Hawk. P. C. c. 19, s. 25.

(i) 2 Hawk. P. C. c. 19, s, 31, where the author says, "it seems most properly to be called a fine. But this does not clearly appear from the old books; for in some of them it seems to be taken as a fine, in others as an amerciament; and in others it is spoken of generally as the imposition of a certain sum, and without any mention of either fine or amerciament."

(j) 2 Hawk. P. C. c. 19, s. 33.
(k) Id. ibid. s. 30.

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.

The 56 Geo. 3, c. 63, which was passed for regulating the ge- 56 G. 3, c. 63, neral Penitentiary for convicts at Millbank, enacts, that if any as to persons person having custody of any convict, or being employed by the having the custody of person having such custody, in the manner mentioned in the act, convicts in the shall negligently permit any such convict to escape; such person general penitentiary. 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. (1)

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. (m) 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. (n)

SECT. II.

Of Escapes suffered by Private Persons.

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 has another lawfully in his custody, whether upon an arrest made by himself or another, he is guilty of an escape if he suffer him to go at large before he has discharged himself, by delivering him 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. (0)

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, excuse himself from the escape by alleging that he delivered the prisoner over to an officer, without shewing to whom, in particular,

(1) 56 Geo. 3, c. 63, s. 44. And by s. 45, in any prosecution against any person concerned in the escape, &c., or aiding, &c., a copy properly attested of the order of commitment to the Penitentiary is made evidence that the person in question was so ordered to confinement, after

proof that such person is the same that was
delivered with the order.

(m) 2 Hawk. P. C. c. 19, s. 32, and
more fully, id. c. 37, s. 28.

(n) Rex v. Fell, 1 Lord Raym. 424.
(0) 2 Hawk. P. C. c. 20, s. 1, 2. 1
Hale, 595. Sum. 112.

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Punishment of private persons for escapes.

by name, he so delivered him, that the Court may certainly know who is answerable. (p)

If an escape suffered by a private person were voluntary, he is punishable as an officer would be for the same offence; (g) and if it were negligent, he is punishable by fine and imprisonment, at the discretion of the Court. (r)

(p) 2 Hawk. P. C. c. 20, s. 3. 4. 1 Hale, 594, 595. Staund. P. C. 34. Sum. 112, 114. Hawkins. id. s. 4, says that if no officer will receive such prisoner into his custody, it seems to be the safest way to deliver him into the custody of the township where the person who arrested him lives, or perhaps of that where the arrest was made, which shall be bound to keep him till the next gaol delivery: but he says," If such township refuse also to receive him, I do not see how the person who made the arrest can discharge himself of him before the next gaol delivery;

unless he can in the mean time procure him to be bailed." The proper course, I apprehend, for a private person, who has arrested a person on suspicion of felony, is to take him as soon as he reasonably can before a magistrate, who will examine into the case, and either commit, bail, or discharge the party as the circumstances may require. C. S. G. See Reed v. Cowmeadow, 7 C. & P. 821, per Parke, B.; and Edwards v. Ferris, 7 C. & P. 542, Patteson, J.

(q) Ante, 423, 424.

(r) 2 Hawk. P. C. c. 20, s. 6.

CHAPTER THE THIRTY-THIRD.

OF PRISON-BREAKING BY THE PARTY CONFINED.

WHERE a party effects his own escape by force, the offence is
usually called prison-breaking; and such breach of prison, or even
the conspiring to break it, was felony at the common law, for
whatever cause, criminal or civil, the party was lawfully imprison-
ed; (a) and whether he were actually within the walls of a prison,
or only in the stocks, or in the custody of any person who had
lawfully arrested him. (b) But the severity of the commmon law is
mitigated by the statute De frangentibus prisonam, 1 Ed. 2, stat. 2,
which enacts, "That none, from henceforth, that breaketh prison,
shall have judgment of life or member for breaking of prison only;
except the cause for which he was taken and imprisoned did
require such a judgment, if he had been convict thereupon, ac-
cording to the law and custom of the realm." Thus, though to
break prison and escape, when lawfully committed for any treason
or felony, remains still felony as at common law; to break prison
when lawfully confined upon any other inferior charge, is punish-
able only as a high misdemeanor, by fine and imprisonment. (c)
It will be proper to consider some of the points which have been
holden in the construction of this statute.
Any place whatsoever wherein a person, under a lawful arrest
for a supposed crime, is restrained of his liberty, whether in the
stocks, or the street, or in the common gaol, or the house of a
constable or private person, or the prison of the ordinary, is pro-
perly a prison within the meaning of the statute; for imprison-
ment is nothing else but a restraint of liberty. (d) The statute,
therefore, extends as well to a prison in law as to a prison in
deed. (e)

With respect to the regularity of the imprisonment, it is clear, that if a person be taken upon a capias, awarded on an indictment or appeal against him for a supposed treason or felony, he is within the statute if he break the prison, whether any such crime were or were not committed by him or any other person: for there is an accusation against him on record, which makes his commitment

(a) 4 Blac. Com. 129. 1 Hale, 607. Bract. I, 3, c. 9. 2 Inst. 588. See Arch. 2 B. P. 2nd Vol. 647, 3rd Ed. (b) 2 Hawk. P. C. c. 18, s. 1.

(c) 4 Blac. Com. 130.
(d) 2 Hawk. P. C. c. 18, s. 4.
(e) 2 Inst. 589.

Offence at common law,

whether impri

sonment were

for a criminal

or civil cause.

Construction of

1 Ed. 2, st. 2.

What is a prison within

the statute.

Of the regularity of the imprisonment.

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