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Nevertheless, by stat. 3 Ed. 1. c. 15. (now repealed), those who Not bailable have broken prison were not bailable by justices of the peace; and under 3 Ed. 1. that for two reasons: 1. Because it carries a presumption of guilt; c. 15. and, 2. Because it is a superadded offence to the former for which they stood committed. 2 Hale, 133. But see tit. Bail, antè.

Except the cause for which he was taken and imprisoned did require such judgment.] This is to be intended of a lawful cause; and therefore false imprisonment is not within this act. 2 Inst. 590.

And by stat. 4 G. 4. c. 64. $ 43., it is enacted, That if any per- 4 G. 4. c. 64. son shall convey or cause to be conveyed into any prison to which Conveying this act shall extend, any mask, vizor, or other disguise, or any prisons to assist instrument or arms proper to facilitate the escape of any prisoners, prisoners to and the same shall deliver or cause to be delivered to any prisoner escape. in such prison, or to any other person there, for the use of any such prisoner, without the consent or privity of the keeper of such prison; every such person shall be deemed to have delivered such vizor or disguise, instrument, or arms, with intent to aid and assist such prisoner to escape, or attempt to escape; and if Transportation any person shall, by any means whatever, aid and assist any pris for assisting soner to escape, or in attempting to escape from any prison, prisoners to every person so offending, whether an escape be actually made or

escape. not, shall be guilty of felony, and being convicted thereof, shall be transported beyond the seas for any term not exceeding four- Felony. teen years.

$44. And to the intent that prosecution for escapes, breaches Offenders of prison, and rescues, may be carried on with as little trouble making es. and expense as is possible, it is enacted, that any offender escap- capes, &c. ing, 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 retaken; and in Where they case of any prosecution for any such escape, attempt to escape, may be tried. 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 Certificate of the clerk of assize, or other clerk of the court in which such of conviction. fender 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.

Imprisonment is a restraint of a man's liberty under the custody Imprisonment, of another, by lawful warrant, in deed, or in law. Lawful warrant what. is either when the offence appeareth by matter of record, as when the party is taken upon an indictment; or when it doth not appear On indictment. by matter of record, as when a felony is done, and the offender by a lawful mittimus is committed to gaol for the same : but between By mittimus. these two cases there is a great diversity ; for in the first case, whether any felony were committed or no, if the offender be taken by force of a capias, the warrant is lawful, and if he break prison, it is felony, although no felony were committed : but in the other case, if no felony be done at all, and yet he be committed to prison for a supposed felony, and break prison, this is no felony, for there is no cause. ,2 Inst. 590.

cient.

pear to be

Felony by re

So that the cause must be just and not feigned, for things feigned lation not suffi- require no judgment. Thus, if a man give another a mortal wound,

for which he is committed to prison, and breaketh prison, and the other dieth of the wound within the year, this death hath relation to the stroke : but because relations are but fictions in law, and fictions are not here intended, this prison-breaking is not felony. 2 Inst. 591.

So that the offence for which the party was imprisoned must be a capital one at the time of the offence, and not become such by a

matter subsequent. 2 Haw. c. 18. $ 14. Offence com- The breaking of a prison where traitors are in durance, and plete, though causing them to escape, is treason; although the parties did not it be not known know that traitors were there : and so to break a prison whereby for what cause

felons escape, this is felony, though they do not know them to be the prisoners are confined.

in prison for such offence. Kel. 77. 3d res. Acc. Benstead's

case, Cro. Car. 583. See R. v. Shaw and another, C. C. R. 526. Charge in the

And the cause must be expressed in the mittimus, although not mittimus must so certainly as in an indictment, yet with such a convenient eer. be certain.

tainty as it may appear judicially that the offence requireth such judgment; as, not for felony generally, but for felony in stealing

such a horse, and the like. 2 Inst. 591. And in the But if the offence for which the party is committed be supposed event must apé in the mittimus to be of such a nature as requires a capital judg. ment; yet if in the event it be found to be of an inferior nature

, felonious.

and not to require such a judgment, it seems difficult to maintain that the breaking of the prison, on a commitment for it, can be felony; for the words of the statute are, except the cause for which he was taken and imprisoned did require suchjudgment; and here it appears that the offence which is the cause of his imprisonment

doth not require such a judgment. 2 Haw. c. 18. $ 15. Suspicion of

But if a man be committed by lawful warrant for suspicion of felony. felony done, if he break prison he may be indicted for that escape,

albeit the commitment be for suspicion of felony, and yet no judgment can be given against him for suspicion, but for the

felony itself, whereof he is suspected. 2 Inst. 592. Informality of If the party has been taken up upon such strong causes of suswarrant.

picion as will be a good justification of his arrest and commitment, it seems it will be felony in him to break the prison, though he happen to have been committed by an informal warrant. 1 Russ.

379., and the authorities there cited. Indictment for And an indictment that such a person feloniously broke the priprison-breach

son generally is not good; but it ought to rehearse the specialty must aver par- of the matter, that he being imprisoned for such or such felony ticulars.

broke the prison. 2 Inst. 591. Not felony un- But if the party be only arrested for and in his mittimus charged less prisoner be with a crime which doth not require judgment of life or member

, charged with offence liable to

as petit larceny, or homicide by self-defence or by misadventure, judgment of

and the offence be in truth no greater than the mittimus doth life or member. suppose it to be, it is clear from the express words of the statute

that the breaking of the prison cannot amount to felony. 2 Haw.

c. 18. § 15. New felony is But if a felony be made by a subsequent statute, and an ofwithin it. fender is committed thereupon; if he break prison, it is felony.

For since all breaches of prison were felonies by the common law, which is restrained by this statute in respect only of impri

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 such crime or pot; for the words of the statute are, for which he

principal

felony. was taken and imprisoned. 2 Haw. c. 18. $ 16.

But if he be first indicted and acquitted of the principal felony, Aliter if ache 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 bis 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.

By 59 G. 3. c. 136.9 17., any convicts confined in the penitentiary Escape, prison. at Millbank, breaking prison or escaping, shall be punished with an breach, or atadditional confinement not exceeding three years ; and if, being so tmpt, &c. from

penitentiary. 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 enactbreaking 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. County of THE jurors for our lord the king upon their

oath present, That A. C. late of yeoman, to wit. constable of our said lord the king in and for the town of

in the said county, on the day of in the -year of the reign of

at 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 taking and leading away one black gelding, the property of of the value of

and thereupon he the said A. O. under the custody of him the said A. C. the constable aforesaid, was brought before J. P. esquire, one of the justices of our said lord the king assigned to keep the peace in the said county, and also to hear and

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determine divers felonics, trespasses, and other misdemeanors within the said county committed ; and he the said J. P. by his warrant directed to the said A. C. and others, did command ihe said A. C. to carry

the said A. 0. to the gaol of our said lord the king at

in the county aforesaid, there to be safely kept until he should be lawfully delivered from thence ; by virtue of which said warrant he the said A. 0. was taken and detained by him the said A. C.; and he the said A. C. was conveying and car. rying him the said A. O. to the gaol aforesaid, afterwards, to wit, day of

in the year aforesaid, he the said A. O. of

aforesaid, in the county aforesaid, with force and arms did feloniously break away and escape from and out of the custody of him the said A. C. the

constable aforesaid, against the will of him the said A. C., and against the peace of our said lord the king, his crown and dignity.

on the

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Indictment for breaking out of Gaol. County of | THE jurors for our lord the king upon their oath present, That A. O. late of

in the county to wit. aforesaid, labourer,

day of in the

year of the reign of 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.

Prisoners of twar.

[52 G. 3. c. 156.] 52 G. 3. c. 156. BY stat. 52. G. 3. c. 156., every person who shall, from and after Punishment of the passing of this act, knowingly and wilfully aid or assist persons aiding any alien enemy of H. M., being a prisoner of war in H. M.'s prisoners of

dominions, whether such prisoner shall be confined as a prisoner war to escape.

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 Felony.

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. Persons guilty $ 2. Every person who shall knowingly and wilfully aid or assist of aiding though any such prisoner at large on parole in quitting any part of H. M.'s they do not dominions where he may be on his parole, although he shall not assist the pri

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 52 G. 3. c. 156. person under the provisions of this act.

soner in quitØ 3. If any person or persons owing allegiance to H. M., after ting the coast. any such prisoner as aforesaid hath quitted the coast of any part Punishment of of H. M.'s dominions in such his escape as aforesaid, shall knowo persons assistingly and wilfully upon the high seas aid or assist such prisoner in ing, on the high his escape to or towards any other dominions or place, such person seas, prisoners shall also be adjudged guilty of felony, and be liable to be trans

to escape. ported as aforesaid: and such offences committed upon the high Felony. 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 per

Offences may son committing any offence mentioned in this act from being be tried other. prosecuted in such manner as he might by law have been pro- the provisions secuted if this act had not passed ; but nevertheless no person of this act. 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 Offence not aiding the escape of a prisoner at war, was proved to have taken complete where up a French prisoner of war in a chaise, and to have carried him the prisoner at a certain distance for the purpose of causing him to escape, but it design of appeared that the French prisoner bimself had no intention of escaping. 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 Indictable to war with bread made of unwholesome materials, and not fit to be supply un

wholesome eaten by man. It appeared in this case, that the bread was so

food to prifurnished 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.

soners at war.

Process.
Process prior to Indictment, not referable to Appearance in

Courts of Record.
See tits. Summons, warrant, Search utarrant,

Commitinent.

Process after Indictment, and referable to Appearance in Courts

of Record ; and herein,-
I. To compel an Appearance.
II. Of Outlawry for Non-appearance.

VOL. III.

2 Z Z

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