sonment for offences not capital; when an offence becomes capital, it is as much out of the benefit of the statute, as if it had always been so. Hale's Sum. 108. Also it is said that the party may be arraigned for prison- May be arbreaking, before he be convicted of the crime for which he was raigned before imprisoned; for that it is not material whether he were guilty of conviction for principal such crime or not; for the words of the statute are, for which he was taken and imprisoned. 2 Haw. c. 18. § 16. felony. Aliter if ac But if he be first indicted and acquitted of the principal felony, he shall not be indicted for the breach of prison afterwards; for quitted. it 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. 1 Hale, 612. But the gaoler shall not be punished as a felon for the party's Not felony in breach of prison, unless he voluntarily consented to it: but it gaoler unless seems to be a negligent escape in the gaoler, for which he may consenting. be punished by fine and imprisonment, because there wanted either that due strength in the gaol, or that due vigilance in the gaoler or his officers, that should have prevented it; and if gaolers might not be punished for this as a negligent escape, they would be careless either to secure their prisoners or to retake them that escape. 1 Hale, 601. And therefore if a criminal endeavouring to break the gaol Prisoner trying assault his gaoler, he may be lawfully killed by him in the affray. to break gaol. 1 Haw. c. 28. § 13. breach, or attempt, &c. from penitentiary. By 59 G. 3. c. 136. § 17., any convicts confined in the penitentiary Escape, prisonat Millbank, breaking prison or escaping, shall be punished with an additional confinement not exceeding three years; and if, being so punished by such addition to his term of confinement, he shall afterwards be convicted of a second escape or breach of prison, he shall be guilty of felony without benefit of clergy. And if any convict confined in the penitentiary shall attempt to break prison or escape, or shall forcibly break out of his cell, or make any breach therein with intent to escape, he shall be punished with an additional confinement not exceeding six calendar months. By statutes relating to particular crimes, the offence of prison- Special enact breaking is made the subject of special enactment, which belongs ments. to the title treating of such offences. Indictment for Prison-breaking, by escaping from a Con stable. THE jurors for our lord the king oath present, That A. C. late of constable of our said lord the king in County of to wit. town of in the in the said county, on the within the town and constablewick aforesaid in the county aforesaid, did take and arrest one A. O. late of labourer, on suspicion of having committed a certain felony, in feloniously determine divers felonies, trespasses, and other misdemeanors within County of to wit. day of Indictment for breaking out of Gaol. THE jurors for our lord the king upon their oath aforesaid, labourer, on the year of the reign of -, at day of in the aforesaid, in the county aforesaid, was arrested, imprisoned, and detained in the gaol of our said lord the king for a certain felony by him committed; that is to say, for feloniously taking and leading away one black gelding, the property of of the value of ; and that he the said A. O. on the day of in the year aforesaid, with force and arms the aforesaid gaol of our said lord the king at aforesaid in the county aforesaid feloniously did break, and thereby did escape from and out of the said gaol, against the peace of our said lord the king, his crown and dignity. Punishment of persons aiding prisoners of war to escape. Prisoners of War. [52 G. 3. c. 156.] 52 G. 3. c. 156. BY stat. 52 G. 3. c. 156., every person who shall, from and after the passing of this act, knowingly and wilfully aid or assist any alien enemy of H. M., being a prisoner of war in H. M.'s dominions, whether such prisoner shall be confined as a prisoner of war in any prison or other place of confinement, or shall be suffered to be at large in H. M.'s dominions, or any part thereof, on his parole, to escape from such prison or other place of confinement, or from H. M.'s dominions, if at large upon parole, shall, upon being convicted thereof, be adjudged guilty of felony, and be liable to be transported as a felon for life, or for such term of fourteen or seven years as the court before whom such person shall be convicted shall adjudge. Felony. Persons guilty of aiding though they do not assist the pri § 2. Every person who shall knowingly and wilfully aid or assist any such prisoner at large on parole in quitting any part of H. M.'s dominions where he may be on his parole, although he shall not aid or assist such person in quitting the coast of any part of H. M.'s dominions, shall be deemed guilty of aiding the escape of such person under the provisions of this act. 52 G. S. c. 156. soner in quit ting the coast. Punishment of persons assist ing, on the high seas, prisoners to escape. § 3. If any person or persons owing allegiance to H. M., after any such prisoner as aforesaid hath quitted the coast of any part of H. M.'s dominions in such his escape as aforesaid, shall knowingly and wilfully upon the high seas aid or assist such prisoner in his escape to or towards any other dominions or place, such person shall also be adjudged guilty of felony, and be liable to be transported as aforesaid: and such offences committed upon the high seas and not within the body of any county, shall and may be inquired of, tried, heard, determined, and adjudged in any county Place of trial. within the realm, in like manner as if such offences had been committed within such county. § 4. This act shall not be deemed or taken to prevent any person committing any offence mentioned in this act from being prosecuted in such manner as he might by law have been prosecuted if this act had not passed; but nevertheless no person prosecuted otherwise than under the provisions of this act, shall be liable to be prosecuted for the same offence under the provisions hereof; and no person prosecuted under the provisions of this act, shall for the same offence be liable to be otherwise prosecuted. Where H. M., a female, being indicted for a misdemeanor, in aiding the escape of a prisoner at war, was proved to have taken up a French prisoner of war in a chaise, and to have carried him a certain distance for the purpose of causing him to escape, but it appeared that the French prisoner himself had no intention of getting away, but was acting in concert with the agent of the transport board, in order to detect H. M.; on ca. res., the judges held the conviction wrong, inasmuch as the prisoner at war never escaped, nor intended to escape. R. v. Hannah Martin, C. C. R. 196. It was held to be an indictable offence to supply prisoners at war with bread made of unwholesome materials, and not fit to be eaten by man. It appeared in this case, that the bread was so furnished by a person who was under a contract with government, but that circumstance was not stated in the indictment. R. v. Treeve, 2 East, P. C. 821. Felony. Offences may be tried other wise than under the provisions of this act. Offence not complete where the prisoner at war has no design of Indictable to supply un wholesome food to pri soners at war. Process. Process prior to Indictment, not referable to Appearance in See tits. Summons, Warrant, Search Warrant, Process after Indictment, and referable to Appearance in Courts commission. I. To compel an Appearance. [3 Ed. 1. c. 14. -8 H. 6. c. 10.-1 Ed. 4. c. 2.-31 El. c. 3.21 J. 1. c. 4. · 29 C. 2. c. 7. 48 G. 3. c. 58.] Process by the BY the commission of the peace, the justices in sessions have power to make and continue processes upon indictments against the persons indicted, until they can be taken, surrender themselves, or be outlawed. And by stat. 1 Ed. 4. c. 2., indictments and presentments taken in the sheriff's tourn shall be delivered to the next sessions, who may award process thereupon in like form as if they had been taken before themselves. And the law also in several cases in express words directs process to be made by justices out of sessions; and in other cases by necessary implication; and where a statute doth give power to justices out of sessions to inquire, hear and determine, there they may make process to cause the party to come and answer, otherwise they cannot proceed to hear and determine; and this may be either before or after presentment or indictment, as the several statutes do require: before presentment or indictment, it is called a warrant; after presentment or indictment, it is properly called process. Dalt. c. 193. p. 471. Commonly, an indictment, being but an accusation against a man, is of no force but only to put him to answer unto it. And hereof all process hath the name, because it proceedeth or goeth out upon former matter, either original or judicial. Lamb. 519. And it seemeth plain from the nature of the thing, that there can be no need of process where the defendant is present in court, but only where he is absent. 2 Haw. c. 27. The process ought to be in the name of the king. And if it issue from the king's bench, it ought to be under the teste of the chief justice: if it issue from any other court, there seems to be the same reason that it ought to be under the teste of the first in the commission. 2 Haw. c. 27. § 8. Upon an indictment in sessions (for a misdemeanor, not being felony), there must be fifteen days between the teste and return of the venire; but if the entry be by consent of parties, the venire may be returnable immediatè, and the trial be the same day. 3 Salk. 371. Process on an indictment for felony, by the 25 Ed. 3. c. 14., is two capiases, and then an exigent. Hale's Sum. 209. 2 Haw. c. 27. § 115. The ordinary processes upon all indictments of trespass against the peace, or of other offences against penal statutes, not being felony, or a greater offence, are as follow: first, if the offender be absent, a venire facias, which is but in the nature of a summons to cause the party to appear, shall be awarded, except where other process is directed by some statute. 2 Haw. c. 27. § 9. If it appear by the return of such venire that the party hath lands in the county whereby he may be distrained, the distress infinite shall be awarded from time to time till he do appear, and by force thereof he shall forfeit on every default so much as the sheriff shall return upon him in issues. But if a nihil be returned on such a venire, then three capias's, that is, a capias, alias, and pluries, shall issue. 2 Haw. c. 27. § 10. Where the inhabitants of a parish are indicted or presented, the Where inhaprocess is, first, a venire, then a distringas. bitants are indicted. Process on informations. By stat. 21 J. 1. c. 4., by which all popular actions on penal statutes are restrained to their proper counties, the like process in 21 J. 1. c. 4. every popular action, bill, plaint, suit, or information on a penal statute, before the quarter sessions, (or higher courts,) shall be awarded as in an action of trespass vi et armis at the common law. And consequently, the process in all such suits must be by attachment or pone per vadios; and after by distress infinite, where by the return the party appears to be sufficient, otherwise by capias. 2 Haw. c. 27. § 13. 48 G. 3. c. 58. When any person charged with an offence prosecutable by indictment or (not being treason or felony) on certificate of indictment filed, any judge of K. B. may apprehend and hold the party By stat. 48 G. 3. c. 58. § 1., it is enacted, that whenever any person is charged with any offence for which he may be prosecuted by indictment or information in the K. B., not being treason or felony, and the same shall be made to appear to any judge of the same court by affidavit, or by certificate of an indictment or information being filed against such person in the said court for such information offence, such judge may issue his warrant under his hand and seal, and thereby cause such person to be apprehended and brought before him or some other judge of the same court, or before some one justice of the peace, in order to his being bound with two sufficient sureties in such sum as the said warrant shall express, with condition to appear in the said court at the time mentioned in the said warrant, and to answer all and singular indictments or informations for any such offence; and if he shall neglect or refuse to bail, &c. to become so bound, such judge or justice may respectively commit him to the common gaol of the county, city, or place where the offence shall have been committed, or where he shall have been apprehended, there to remain until he shall become bound as aforesaid, or be discharged by order of the said court in term time, or of one of the judges of the said court in vacation; and the recognizance to be thereupon taken shall be returned and filed in the said court, and shall continue in force until such person shall have been acquitted of such offence, or in case of conviction shall have received judgment for the same, unless sooner ordered by the said court to be discharged; and that where any person, either by virtue of such warrant of commitment, or by virtue of any writ of capias ad respondendum issued out of the said court, is now or hereafter shall be committed or detained in any gaol for want of bail, it shall be lawful for the prosecutor to cause a copy thereof to be delivered to such person, or to the gaoler, keeper, or turnkey of the gaol, wherein he is or shall be so detained, with a notice indorsed, that unless such person shall, within eight days from the time of such delivery of a copy of the indictment or information as aforesaid, cause an appearance, and also a plea or demurrer to be entered in the said court to such indictment or information, an appearance and the plea of not guilty will be entered thereto in the name of such person; and in case he shall thereupon for the said space of eight days after such delivery of a copy of the indictment or information as aforesaid neglect to cause an appearance, and also a plea or demurrer, to be entered |