VI. Indictment for an Escape.

VII. Trial and Conviction for an Escape. [4 G. 4. c. 64.]

VIII. Punishment of an Escape.

[37 G. 3. c. 140.-52 G. 3. c. 156.]

IX. Aiding in attempting to escape.

[16 G. 2. c. 31.-4 G. 4. c. 64.5 G. 4. c. 84.]

I. Df Escape by the Party himself.

As all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, whoever in any case refuses to undergo that imprisonment which the law thinks fit to put upon him, and frees himself from it by any artifice before such time as he is delivered by due course of law, is guilty of an high contempt, punishable with fine and imprisonment. 2 Haw. c. 17. § 5. 4 Blac. Com. 129.

But escape, committed by the party himself, if effected by force, belongs more properly to the title Prison Breaking.

By stat. 44 G. 3. c. 92. § 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.

2., 54 G. 3. c. 186.

The apprehension of persons escaping from England into Scotland, and from Scotland into England, is provided for by stat. 13 G. S. c. 31. And as to admitting persons apprehended in England, Scotland, and Ireland, to bail, for bailable offences, see statutes 45 G. 3. c. 92., and 54 G. 3. c. 186., which latter stat., enacts that all warrants issued in England, Scotland, or Ireland, respectively, may and shall be indorsed and executed, and enforced and acted upon, in any part of the U. K., in like manner as is directed by stat. 13 G. 3. c. 31. in relation to warrants issued or granted in England and Scotland respectively, as fully as if all the provisions of the said act were made part of this act, as to every part of the U. K., and as to all justices of the peace, sheriff's officers, constables or other officer or officers of the peace in Ireland, as well as in England and Scotland respectively. See also title Warrant.

II. Escape suffered by a private Person.

It seems to be a good general rule, that wherever any person Escape by a hath another lawfully in his custody, whether upon an arrest private person. made by himself or another, he is guilty of an escape, if he suffer

him to go at large before he hath discharged himself of him, by

delivering him over to some other who by law ought to have the custody of him. 2 Haw. c. 20. § 1. 1 Russ. 377.

And the law is generally the same, in relation to escapes suffered by private persons, as by officers. Id.

Escape by an officer.

There must be a previous

arrest.

And justifiable.

Escape, where commitment is good in substance.

And for a criminal offence. And not detained only for fees.

Too much liberty, an escape.

Improperly bailing, &c.

Losing sight of, an escape.

It must be a recognised officer.

III. Escape suffered by an Officer.

In order to make an escape there must be an actual arrest; and therefore, if an officer, having a warrant to arrest a man, see him shut up in 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. 2 Haw. c. 19. § 1. 1 Hale, 594.

The arrest must be also justifiable; for if it be either 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. 2 Haw. c. 19. § 2.

But where commitments are good in substance, though they be not strictly formal, the gaoler is as much bound to observe them as if they were made ever so exactly. 1 Russ. 369.

And as the imprisonment must be justifiable, so it must be also for a criminal offence. 2 Haw. c. 19. § 3.

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 be discharged paying his fees; he being detained, not as a criminal, but 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," and he escape after such time is elapsed, without paying them, perhaps such escape may be criminal, for it was part of the punishment that the imprisonment be continued till the fees should be paid. (a) 2 Haw. c. 19. § 4. 1 Russ. 369.

Also, it is an escape in some cases to suffer a prisoner to have greater liberty than by the law he ought to have; as to admit a person to bail, who by law ought not to be bailed, but to be kept in close custody. 2 Haw. c. 19. § 5.

So, if a gaoler or other officer shall license his prisoner to go abroad for a time, and to come again, this is an escape, even though the prisoner return again. Dalt. c. 159.

If the gaoler so closely pursue the prisoner who flies from him, that he retakes him without losing sight of him, the law looks on the prisoner so far in his power all the time, as not to adjudge such a flight to amount at all to an escape: but if the gaoler once lose sight of the prisoner, and afterwards retake him, he seems in strictness to be guilty of an escape. 2 Haw. c. 19. § 6.

But it must be by a known officer of the law. T. Hill, a yeoman wardour of the Tower, and Dod, the gentleman gaoler there, were indicted for the negligent escape of Colonel Parker, committed to the Tower for high treason. Lord Lucas, the constable of the Tower, had committed the colonel to the care of the defendants, to be kept in the house of the defendant Hill. The judges present (0. B. January, 1694) were of opinion, that the

(a) By stat. 55 G. 3. c. 50. all fees payable by prisoners are abolished. See tit. Gaols, &c. § XI.

defendants were not such officers as the law took notice of, and therefore could not be guilty of a negligent escape. It was merely a breach of trust to Lord Lucas, their master.

Upon the same principle, S. Stick, a wardour of the Tower, who was indicted at the same sessions for the negligent escape of Lord Clacarty, was acquitted.

But it is laid down, that whoever, de facto, occupies the office of a gaoler, is liable to answer for a negligent escape, and that it is no way material whether his title to the office be legal or not. 2 Haw. c. 19. § 28.

A sheriff is as much liable to answer for an escape suffered by his bailiff as if he had actually suffered it himself; and the court may charge either the sheriff or bailiff for such an escape. 1 Russ. 372.

IV. What is a voluntary, and what a negligent

Escape.

But a gaoler de facto is liable.

Sheriff liable

for escape by

his bailiff.

Wherever an officer, who hath the custody of a prisoner, Voluntary charged with and guilty of a capital offence, doth knowingly give escape, what. him his liberty, with an intent to save him from his trial or execution, this is a voluntary escape. 2 Haw. c. 19. § 10.

A negligent escape is, when the party arrested or imprisoned Negligent doth escape against the will of him that arrested or imprisoned escape, what. him, and is not freshly pursued and taken again before he hath lost the sight of him. Dalt. c. 159.

If the constable or other officer shall voluntarily suffer a thief, being in his custody, to go into the water to drown himself, this escape is felony in the constable, and the drowning is felony in the thief. Otherwise, if the thief shall suddenly, without the assent of the constable, kill, hang, or drown himself, this is but a negligent escape in the constable. Id.

It appears to have been holden, that it is an escape in the constable to discharge a person committed to his custody by a watchman, as a loose and disorderly woman, and a street-walker, although no positive charge was made. R. v. Bootie, 2 Burr. 864.

V. Concerning the retaking of a Person escaped.

Suffering a prisoner to kill

himself.

Disorderly person given in charge by a

watchman.

retake.

If an officer hath arrested a man by virtue of a warrant, and Officer sufferthen taketh his promise that he will come again, and so letteth ing a voluntary him go, the officer cannot, after arrest, take him again by force of escape cannot his former warrant, for that this was by the consent of the officer. But if he return, and put himself again under the custody of the officer, it seems that it may be properly argued that the officer may lawfully detain him, and bring him before the justice in pursuance of the warrant. Dalt. c. 169. 2 Haw. c. 13. § 9.

But if the party arrested had escaped of his own wrong without the consent of the officer, now, upon fresh suit, the officer may take him again and again so often as he escapeth, although he were out of view, or that he shall fly into another town or county, and bring him before the justice upon whose warrant he was first arrested. Dalt. c. 169. p. 405.

And it is said generally in some books, that an officer who hath negligently suffered a prisoner to escape may retake him where

Prisoner escaping of his own wrong may be retaken.

Breaking open doors to retake.

Retaking excuseth not the escape.

Nor killing the prisoner in pursuit.

Question of

civil liability of gaoler to sheriff on escape of prisoner.

ever he finds him, without mentioning any fresh pursuit: and indeed, since the liberty gained by the prisoner is wholly owing to his own wrong, there seems to be no reason he should take any manner of advantage from it. 2 Haw. c. 19. § 12.

And wherever a person is lawfully arrested for any cause, and afterwards escapes, and shelters himself in a house, the doors may be broken open to take him, on a refusal of admittance. 2 Haw. c. 14. § 9.

It is perhaps the better opinion that wherever a prisoner, by the negligence of his keeper, gets so far out of his power that the keeper loses sight of him, the keeper is punishable for the escape, notwithstanding he took him immediately after. And it is clear that he cannot excuse himself from an escape, by killing a prisoner in the pursuit, though he could not possibly retake him; but must in such case be content to submit to such punishment as his negligence shall appear to deserve. 2 Haw. c. 19. § 13.

Ryland v. Lavender and others, E. 1824, 2 Bing. 65. Defendant, as gaoler, covenanted with the sheriff, among other things, to attend the quarter sessions, and to remove prisoners under writs of habeas corpus, without permitting them to escape. The defendant being engaged at the quarter sessions, the sheriff, upon a writ of habeas corpus for the removal of a prisoner, directed his warrant to the defendant, and "W. W., by me (the sheriff) for this time only thereto specially appointed." W. W., who was the defendant's turnkey, proceeded with the prisoner towards the Special warrant place of destination. The prisoner having escaped, the court of C. P. held that the sheriff, having specially directed the warrant to W. W., the defendant was not liable upon his covenant.

to another

person.

Indictment. (A.)

That prisoner was in defend ant's custody, for a certain crime.

The time of the crime being committed.

Gaoler not pro

ducing him, a conviction.

VI. Indictment for an Estape.

It seems clear that every indictment (A.) for an escape, whether negligent or voluntary, must expressly show that the prisoner was actually in the defendant's custody for such a crime, and that he went at large. And if for a voluntary escape, that the defendant feloniously and voluntarily suffered him to go at large; and it must set forth, not the felony in general, but the particular kind of felony but it seems questionable, whether such certainty, as to the nature of the crime, be necessary in an indictment for a negligent escape; for that it is not material in this case, whether the person who escaped were guilty or not. 2 Haw. c. 19. § 14. -c. 25. § 66.

Where an indictment stated that the prisoner was in defendant's custody, and charged with a certain crime, judgment was arrested because it 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 on such charge. 1 Russ. 374.

The indictment ought also to show the time when the offence was committed for which the party was in custody, that it may appear to have been prior to the escape, and subsequent to the last general pardon.

VII. Trial and Conviction for an Escape.

If the prisoner be of record in a court, and the gaoler being called cannot give an account where he is, this is a conviction of

an escape; but seems not a conviction of a voluntary escape, unless the gaoler confesseth it. And the gaoler may be fined in such a case. 1 Hale, 603.

And it seems to be clear, that a keeper who voluntarily suffers Felony to be another to escape who was in his custody for felony, cannot be tried before the arraigned for such escape as for felony until the principal be escape. attainted, for that the felony of the prisoner shall not be tried between the king and the keeper, because the prisoner is a stranger thereunto; yet he may be indicted and tried for it as a misprision before the attainder of the principal offender. 2 Haw. c. 19. § 26. 2 Inst. 591,592.

Where the commitment is for high treason, the party voluntarily Escape in high permitting the escape is punishable for such crime, whether the treason. party escaping be ever convicted or not; there being no accessaries

in high treason. 1 Russ. 374.

conviction.

In a prosecution for an escape, it was held that a certificate of Certificate of the clerk of assize was not competent evidence of the conviction in consequence of which the prisoner was in custody. R. v. Smith, E. T. 1788, 1 Russ. 367.

See

post.

But now by 4 G. 4. c. 64. § 44., in case of any prosecution for Made evidence. an escape, attempt to escape, &c., either against the prisoner escaping, or any other person concerned therein, a certificate by the clerk of assize, or any other clerk of the court where the prisoner shall have been convicted, shall, with due proof of the identity of the person, be sufficient evidence of the conviction, &c.

Under a statute, authorising a similar certificate, (56 G. 3. c. 27.) What it must it was held not sufficient for the certificate to state merely that state. the prisoner was convicted of felony, but that it ought to set out the effect and substance of the conviction. R. v. Watson. M. T. 1821. C. C. R. 468.

VIII. Punishment of an Escape.

If a felon escape before arrest, it is not punishable in him as felony; but for the flight he forfeits his goods when presented. Hale's Sum. 111.

If a private person arrest a felon, and he escape by force from him, the township shall be amerced, but it seems it excuseth the party, because he cannot raise power to assist him: but if a constable or other officer hath the custody of a prisoner, bringing him to the gaol, it seems that a simple escape by the rescue of the prisoner himself doth not wholly excuse him, because he may take sufficient strength to his assistance. 1 Hale, 601.

Wherever a person is found guilty upon an indictment or pre- Of a negligent sentment of a negligent escape of a criminal actually in his escape.

custody, he is punishable by fine and imprisonment, according to

the quality of the offence. 2 Haw. c. 19. § 31.-c. 20. § 6.

1 Hale, 600.604.

And it seems to be the better opinion that the sheriff is as much liable to answer for a negligent escape, suffered by his bailiff, as if he had actually suffered it himself, and that the court may charge either the sheriff or bailiff for such an escape; and if a deputy gaoler be not sufficient to answer a negligent escape, his principal must answer for him. 2 Haw. c. 19. § 29. Rex v. Fell, 1 Ld. Raym. 424.