Legality of conviction cannot be

to comply with the terms of the order. (k) But if the statement of the order having been served on all the defendants (which, as has been before observed, is a necessary statement) be omitted, the want of such an allegation will not be supplied by averring that they were all requested to perform the duties required by the order. (1)

On a motion to arrest the judgment upon an indictment for disobeying an order of justices for the payment of a fine upon a coninquired into viction, the court of King's Bench refused to hear any objections to the conviction which did not appear upon the face of it. (m)

on motion

in arrest of judgment.

33 Geo. 3. c. 55. s. 1.

gives a power to justices, at a petty sessions, to im

pose fines upon

constables, &c.

for neglect of duty, and dis

obedience to

orders of jus

tices.

Before this subject is concluded, it may be proper, shortly, to notice the statute 33 Geo. 3. c. 55. s. 1. which gives power to justices of the peace assembled at any special or petty sessions, upon complaint upon oath of any neglect of duty, or of any disobedience of any lawful warrant, or order of any justice or justices of the peace, by any constable, overseer of the poor, or other peace or parish officer, (such constable, &c. having been duly summoned) to impose, upon conviction, any reasonable fine or fines, not exceeding forty shillings; and, by warrant under the hands and seals of any two or more of such justices so assembled, to direct the fines to be levied by distress and sale of the offender's goods. And it is provided, that any person aggrieved by such fine, warrant, &c. may appeal to the next quarter sessions; giving, at least, ten days' notice.

(k) 2 Chit. Crim. L. 279. note (g)
citing 1 T. R. 316. which is the case
of Rex v. Fearnley, where an objec-

tion was taken to an indictment that it
did not contain such statement; but
the court did not find it necessary to

give any opinion upon the point.

(1) Rex v. Kingston and others, 8 East. 41, 53.

(m) Rex v. Mitton, 3 Esp. R. 200. in the note.

CHAPTER THE THIRTY-SECOND.

OF ESCAPES.

AN escape is, where one who is arrested gains his liberty before he is delivered by the course of the law. (a) And it may be by the party himself; either without force before he is put in hold, or with force after he is restrained of his liberty; or it may be by others; and this also either without force, by their permission or negligence, or with force, by the rescuing of the party from custody. Where the liberation of the party is effected either by himself or others, without force, it is more properly called an escape; where it is effected by the party himself, with force, it is called prison-breaking; and where it is effected by others, with force, it is commonly called a rescue. (b) In the present Chapter it is proposed to consider of those acts without force, which more properly come under the title of escape.

There is little worthy of remark in the books respecting an Of an escape escape effected by the party himself, without force: but the ge- by the party neral principle appears to be, that, as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it by any artifice, and elude the vigilance of their keepers, before they are put in hold, are guilty of an offence in the nature of a high contempt, and punishable by fine and imprisonment. (c) And it is also criminal in a prisoner to escape from lawful confinement, though no force or artifice be used on his part to effect such purpose. Thus, if a prisoner go out of his prison without any obstruction, the doors being opened by the consent or negligence of the gaoler, or if he escape in any other manner, without using any kind of force or violence, he will be guilty of a misdemeanor; and if his prison be broken by others, without his procurement or consent, and he escape through the breach so made, he may be indicted for the escape. (d)

It was decided, upon an indictment for an escape from the House Evidence. of Correction, after conviction for a capital offence and conditional

(a) Terms de la ley.

(b) 1 Hale 590. 2 Hawk. P. C. c. 17, 18, 19, 20, 21.

(c) 2 Hawk. P. C. c. 17. s. 5.

4

Blac. Com. 129.

(d) 1 Hale 611. 2 Inst. 589, 590. Summ. 108. Staund. P. C. 30, 31. 2 Hawk. P. C. c. 18. s. 9, 10.

Persons escaping from Great Britain to Ireland, or from Ireland to Great Britain,

to be apprehended and

brought back again.

pardon, that a certificate from the officer of the former conviction was not evidence, as in the case of being at large after sentence of transportation. The indictment was for an escape from the House of Correction after a pardon, upon condition of being there for one year; the certificate of the clerk of assize was produced in evidence: but, upon a case reserved, the Judges were of opinion that the certificate was no evidence, there being no act which made it evidence, and that the conviction was wrong. (2) But a late statute 4 Geo. 4. c. 64. s. 44. to the intent that prosecutions for escapes, breaches of prison, and rescues, may be carried on with as little trouble and expense as possible, enacts (amongst other things) that in case of any prosecution for any 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. With respect to the form of such a certificate, a case decided upon a statute 56 Geo. 3. c. 27. s.,8., now repealed, may be mentioned, in which it was decided that the certificate of a former conviction, authorized by that statute, should set forth the effect and substance of the conviction; and that stating it to have been for felony only was insufficient. The prisoner was indicted for being at large after a sentence of transportation for seven years: the indictment only stated that he had been convicted of felony, without specifying the nature of that felony; and the certificate to prove the former conviction was in the same form. Upon the point being saved, the Judges thought this case decided by a former case of Rex v. Sutcliffe, and the prisoner was remitted to his original sentence. (y)

It may be here mentioned that, by a late statute, 44 Geo. 3. c. 92. s. 3. offenders, against whom any warrant shall be issued, escaping from Ireland into England or Scotland, may be apprehended by an indorsed warrant, and conveyed to Ireland: and the fourth section of the act makes the same provision as to offenders escaping from England or Scotland into Ireland, being apprehended and conveyed back again to England or Scotland. (e)

Escapes effected or, perhaps more properly, suffered by others than the party himself, without force, by permission or negligence, may be either, I. by officers; or, II. by private persons.

(z) Rex v. Smith, East. T. 1788. MS. Bayley, J.

(y) Rex v. Watson, Mich. T. 1821. MS. Bayley, J. and Russ. and Ry. 468. The statute 56 Geo. 3. c. 27. s. 3. authorized a certificate containing the effect and substance only, omitting the formal part, of every indictment, conviction, &c.

(e) And see as to the apprehension of persons escaping from England into Scotland, and from Scotland into England, 13 Geo. 3. c. 31. And as to the admitting persons apprehended in England, Scotland, and Ireland, respectively, to bail, for bailable offences, see 45 Geo. 3. c. 92. and 54 Geo. 3. c. 186.

SECT. I.

Of Escapes suffered by Officers.

AN escape of this kind must be from a justifiable imprisonment for

a criminal matter, after an actual arrest.

must be after an actual ar

As there must be an actual arrest, it has been holden, that if an The escape officer, having a warrant to arrest a man, see him shut in up a house, and challenge him as his prisoner, but never actually have him in his custody, and the party get free, the officer cannot be charged with an escape. (ƒ)

The arrest and imprisonment must be justifiable; for, if a party be arrested for a supposed crime, where no such crime was committed, and the party neither indicted nor appealed, or for such a slight suspicion of an actual crime and by such an irregular mittimus as will neither justify the arrest nor imprisonment, the officer is not guilty of an escape by suffering the prisoner to go at large. (g) But it seems that if a warrant of commitment plainly and expressly charge the party with treason or felony, though it be not strictly formal, the gaoler, suffering an escape, is punishable; and that where commitments are good in substance, the gaoler is as much bound to observe them as if they were made ever so exactly. (h) It is stated as a sood general rule upon this subject that, whenever an imprisonment is so far irregular that it will be no offence in the prisoner to break from it by force, it can be no offence in the officer to suffer him to escape. (i)

The imprisonment must not only be justifiable, but also for some criminal matter. But the escape of one committed for petit larceny only is criminal; and it seems most agreeable to the general reason of the law that the escape of a person committed for any other crime whatsoever should also be criminal. (j) The imprisonment must also be continuing at the time of the escape; and its continuance must be grounded on that satisfaction which the public justice demands for the crime committed. So that if a prisoner be acquitted, and detained only for his fees, it will not be criminal to suffer him to escape, though the judgment were that he should be discharged, "paying his fees;" he being in such case detained only as a debtor: but if a person, convicted of a crime, be condemned to imprisonment for a certain time, and also "until he pays his fees," it is said that perhaps an escape of such person, after the time of his imprisonment is elapsed, without paying his fees, may be criminal; as it was part of the punishment

66

rest.

And the arrest

and imprisonment must be

justifiable.

The imprisonment must be matter, and continuing at the time of

for a criminal

the escape.

Escapes may be voluntary or negligent.

Of voluntary escapes.

that the imprisonment should be continued till the fees should be paid. (k)

The next important inquiry upon this subject will be, whether the escape be voluntary or negligent, as the former is an offence of a much more serious nature than that which may have been committed by negligence.

Whenever an officer, having the custody of a prisoner charged with, and guilty of, a capital offence, knowingly gives him his liberty with an intent to save him either from his trial or execution, such officer is guilty of a voluntary escape; and thereby involved in the guilt of the same crime of which the prisoner is guilty, and for which he was in custody. (1) Hawkins says, that it seems to be the opinion of Sir Matthew Hale, (m) that in some cases an officer may be adjudged guilty of a voluntary escape who had no such intent to save the prisoner, but meant only to give him a liberty which, by law, he had no colour of right to give; as if a gaoler should bail a prisoner who is not bailable: but he withholds his assent to that opinion, on the grounds that it is not sufficiently supported by authorities, and does not seem to accord with the purview of a statute 5 Edw. 3. c. 8. relating to the improper bailing of persons by the marshals of the King's Bench. (n) He says also, that it seems to be agreed that a person who has power to bail is guilty only of a negligent escape, by bailing one who is not bailable; and that there are some cases wherein an officer seems to have been found to have knowingly given his prisoner more liberty than he ought to have had, (as by allowing him to go out of prison on a promise to return; or to go amongst his friends, to find some who would warrant goods to be his own which he is suspected to have stolen) and yet seems to have been only adjudged guilty of a negligent escape. (o) And he concludes by saying, that if, in these cases, the officer were only guilty of a negligent escape, in suffering the prisoner to go out of the limits of the prison, without any security for his return, he could not have been guilty in a higher degree if he had taken bail for his return; and that from thence it seems reasonable to infer that it cannot be, in all cases, a general rule that an officer is guilty of a voluntary escape by bailing his prisoner, whom he has no power to bail, but that the judgment to be made of all offences of this kind must depend upon the circumstances of the case: such as the heinousness of the crime with which the prisoner is charged, the notoriety of his guilt, the improbability of his returning to render himself to justice, the intention of the officer, and the motives on which he acted. (p)

(k) 2 Hawk. P. C. c. 19. s. 4. This seems to be a good reason: but Hawkins says that it is to be intended only where the fees are due to others as well as to the gaoler; for, otherwise, the gaoler would be the only sufferer by the escape; and that it would be hard to punish him for suffering an injury to himself only in the non-payment of a debt in his power to release.

(7) Staund. P. C. 33. 2 Hawk. P. C. c. 19. s. 10. 4 Blac. Com. 129.

(m) Sum. 113. 1 Hale 596, 597. (n) Post, 376.

(0) Hawkins says, however, that it must be confessed that, in these cases, the prisoner was only accused of larceny, and that it does not appear whether he were bailable or not; and that, generally, the old cases concerning this subject are so very briefly reported that it is very difficult to make an exact state of the matter from them. (p) 2 Hawk. P. C. c. 19. s. 10.