Evidence for the Defendant.

9 & 10 W. So, where a

If the defendant be a contractor, or a person employed by a contractor for the purpose of manufacturing, &c., the stores mentioned in the indictment, he must prove this, and it will be a good excuse for his having them in his possession. See 9 & 10 W. 3, c. 41, s. 1; 39 & 40 G. 3, c. 89, s. 3. So, he may justify his possession of them by producing the regular certificate for the goods, under the hands of three or more of the principal officers or commissioners of the navy, ordnance, or victualling office, stating the numbers, quantities, and weights of such goods, and the reason of their coming into the defendant's hands. 3, c. 41, ss. 2, 4, 8; 39 & 40 G. 3, c. 89, ss. 25, 26. woman was indicted for having naval stores, namely, canvass, in her possession, and she proved that it was in common use in her family during her husband's life-time, and came to her upon his death, and was constantly used by her as table linen afterwards; this was holden to be a sufficient excuse; and the defendant was acquitted. Fost. 432; 2 East, P. C. 765. So, if the defendant prove that he bought the stores in question from a person who was in the habit of purchasing at the navy sales, and who he was therefore led to presume had the regular certificate, it will be a sufficient excuse. R. v. Banks, 1 Esp. 145.

9. Misconduct of Officers of Justice, 582.

10. Not obeying the Orders of a Magistrate, 584.

11. Compounding Felony, 585.

12. Libels reflecting on the Administration of Justice, 588.

SECT. 1.

ESCAPE.

Statute.

4 G. 4, c. 64, s. 44-Venue and Evidence.]-To the intent that prosecutions for escapes, breaches of prison, and rescues, may be carried on with as little trouble and expense as is possible, be it 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 re-taken; 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, 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.

Indictment against a Constable for a negligent Escape.

Middlesex, to wit:-The jurors for our lady the Queen upon their oath present, that, on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, at the parish of B., [*551] *in the county of M., J. S., then being one of the constables of the said parish, brought one J. N. before A. C., esquire, then and yet being one of the justices of our said lady the Queen, assigned to keep the peace for our said lady the Queen in and for the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdeeds committed in the said county; and the said J. N. then and there was charged before the said A. C. by one Catharine Hope, spinster, upon the oath of the said Catherine, that he the said J. N. bad then lately before violently, and against her will, feloniously ravished and carnally known her the said Catherine; and the said J. N. was then and there examined before the said A. C., the justice aforesaid, touching the said offence so to him charged as aforesaid; upon which the said A. C., the justice aforesaid, did then and there make a certain warrant under his hand and and seal, in due form of law, bearing date the said third day of August, in the year aforesaid, directed to the keeper of Newgate or his deputy, commanding him the said keeper or his deputy, that he should receive into his custody the said J. N., brought before him and charged upon the oath of he said Catherine Hope, with the premises above specified; and the said justice, by the said warrant, did command the said keeper of Newgate, or his deputy, to safely keep him the said J. N. there until he by due course of law should be discharged; which said warrant afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, was delivered to the said J. S., then being one of the constables of the said parish as aforesaid, and then and there having the said J. N. in his custody for the cause aforesaid; and the said J. S. was then and there commanded by the said A. C., the justice aforesaid, to convey the said J. N., without delay, to the said gaol of Newgate, and to deliver him the said J. N. to the keeper of the said gaol, or his deputy, together with the warrant aforesaid.* And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S., late of the parish aforesaid, in the county aforesaid, baker, afterwards, to wit, on the day and year last aforesaid, then being one of the constables of the said parish as aforesaid, and then having the said J. N. in his custody for the cause aforesaid, at the parish aforesaid, in the county aforesaid, the said J. N. out of the custody of him the said J. S. unlawfully and negligently did permit to escape, and go at large whithersoever

he would, whereby the said J. N. did then and there escape, and go at large whithersoever he would; to the great hindrance of justice, to the evil example of all others in the like case offending, and against the peace of our lady the Queen, her crown and dignity.

Id.

Fine. 2 Hawk. c. 19, s. 31. Where a private person is guilty of a negligent escape, the punishment is fine or imprisonment, or both. c. 20, s. 6. The imprisonment must be for some criminal matter, otherwise the escape is not punishable criminally.

Evidence.

Prove that J. N. was charged with a rape, alleged in the indictment. Prove the warrant of commitment in substance as set out in the indictment, either by producing the warrant itself, or, after proving the service of a notice upon the defendant to produce it, by parol *or [ *552 ] other secondary evidence of its contents. Prove a delivery of

the warrant to the defendant. Prove that he had J. N. in actual custody under the warrant. See 2 Hawk. c. 19, ss. 1, 4. And lastly, prove the escape. It is not necessary to prove negligence in the defendant; the law implies it; see 1 Hale, 600; but if the escape were not fact negligent, if the defendant by force rescued himself, or were rescued by others, and the defendant made fresh suit after him, but without effect; all this must be shewn upon the part of the defendant. Also, it is immaterial whether J. N. were guilty of the rape or not, provided the warrant were such as would justify J. S. in detaining him. (See ante, p. 423).

Indictment for escaping out of the Custody of a Constable.

State the charge before the magistrate, the warrant of commitment, and the defendant's being in the custody of J. S., as in the last precedent, to the* and then proceed thus] and the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. N., late of the parish aforesaid, in the county aforesaid, labourer, so being in the custody of the said J. S., under and by virtue of the warrant aforesaid, afterwards, and whilst he continued in such custody, and before he was delivered by the said J. S. to the said keeper of Newgate, or his deputy, to wit, on the day and year last aforesaid, at the parish aforesaid, in the county aforesaid, out of the custody of the said J. S. unlawfully did escape, and go at large whithersoever he would, to the great hindrance of justice, to the evil example of all others in the like case offending, and against the peace of our lady the Queen, her crown and dignity. The venue may be laid

in the county where the offence was committed, or in that in which the defendant was apprehended and retaken, 4 G. 4, c. 64, s. 44, (ante, p. 550.

Fine and imprisonment. See 2 Hawk. c. 17, s. 5. See the evidence under the last precedent.

Indictment against a Gaoler for a Voluntary Escape.

Berkshire, to wit:-The jurors for our lady the Queen upon their oath present, that heretofore, to wit, [at the general quarter sessions of the peace holden at, so continuing the record of the conviction of the party who escaped, stating it, however, in the past and not in the present tense; (see ante, p. 89); then proceed thus]: as by the record thereof more fully and at large appears; which said judgment still remains in full force and effect, and not in the least reversed or made void. And the jurors first aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, at the said general quarter sessions of the peace. above mentioned, he the said J. N. was then and there committed to the care and custody of J. S., he the said J. S. then and still being keeper of the common gaol in and for the said county of Berks, there to be kept and imprisoned in the gaol aforesaid, according to and in pursuance of the judgment and sentence aforesaid; and the said J. S. him the said J. N. then and there had in the custody of him the said J. S., for the cause

aforesaid, in the gaol aforesaid. And the jurors first [ *553 ] *aforesaid upon their oath aforesaid, do further present, that the said J. S. late of the parish of L., in the said county of Berks, yeoman, afterwards, and before the expiration of the six calendar months for which the said J. N. was so ordered to be imprisoned as aforesaid, and whilst the said J. N. was so in the custody of the said J. S. as such keeper of the said common gaol as aforesaid, to wit, on the third day of August, in the year last aforesaid, at the parish aforesaid, in the county aforesaid, feloniously, [if the offence for which J. N. was convicted were a felony], unlawfully, voluntarily, and contemptuously, did permit and suffer the said J. N. to escape, and go at large whithersoever he would; whereby the said J. N. did then and there escape out of the said prison, and go at large whithersoever he would; in contempt of our said lady the Queen and her laws, contrary to the duty of the said J. S., so being keeper of the gaol aforesaid, in manifest hindrance of justice, to the evil example of all others in the like case offending, and against the peace of our lady the Queen, her crown and dignity.

A voluntary escape amounts to the same effence, and is punishable in the same degree, as the offence of which the prisoner was guilty, and for which he was in custody, whether treason, felony, or trespass. The officer,