PART XI.

ESCAPES AND RESCUES.

BEING AT LARGE WHILE UNDER SENTENCE. (New).

159. Every one is guilty of an indictable offence and liable to two years' imprisonment who, having been sentenced to imprisonment, is afterwards, and before the expiration of the term for which he was sentenced, at large within Canada without some lawful cause, the proof whereof shall lie on him. 5 Geo. IV. c. 84, s. 22, (Imp.).

"In dealing with the somewhat intricate subject of escapes. and rescues we have made distinctions which are, we think, insufficiently recognized by the existing law, between the commission of such offences by peace officers and gaolers, and by other persons."-Imp. Comm. Rep.

Not triable at quarter sessions, section 540.

Fine and sureties, section 958.

Sections 1, 2, 6, 32 et seq. of 53 V. c. 37, are unrepealed. Form of indictment: Archbold 884. Proof of a previous conviction, section 694.

What is an escape.-An escape is where one who is arrested gains his liberty without force before he is delivered by due course of law. The general principle of the law on the subject is 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, are guilty of an offence of the nature of a misdemeanour. 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 misdemeanour: R. v. Nugent, 11 Cox, 64. The officer by whose default a

prisoner gains his liberty before he is legally discharged is also guilty of the offence of escape, divided in law, then, into two offences, a voluntary escape or a negligent escape. To constitute an escape there must have been an actual arrest in a criminal matter.

A voluntary escape is where an officer, having the custody of a prisoner, knowingly and intentionally gives him his liberty, or by connivance suffers him to go free, either to save him from his trial or punishment, or to allow him a temporary liberty on his promising to return and, in fact, so returning R. v. Shuttleworth, 22 U. C. Q. B. 372. Though some of the books go to say that, in this last case, the offence would amount to a negligent escape only.

A negligent escape is where the party arrested or imprisoned escapes against the will of him that arrests or has him in charge, and is not freshly pursued and taken again before he has been lost sight of. And in this case, the law presumes negligence in the officer, till evident proof on his part to the contrary. The sheriff is as much liable to answer for an escape suffered by his officers as if he had actually suffered it himself. A justice of the peace who bails a person not bailable by law is guilty of a negligent escape, and the person so discharged is held to have escaped.

When was an escape a felony, and when a misdemeanour.-An escape by a prisoner himself is no more than a misdemeanour whatever be the crime for which he is imprisoned. Of course, this does not apply to prisonbreaking, but simply to the case of a prisoner running away from the officer or the prison without force or violence. This offence falls under section 164, post. An officer guilty of a voluntary escape is at common law involved in the guilt of the same crime of which the prisoner is guilty, and subject to the same punishment, whether the person escaping were actually committed to some gaol, or under an arrest only and not committed, and whether the offence

be treason, felony or misdemeanour, so that, for instance, if a gaoler voluntarily allows a prisoner committed for larceny to escape he is guilty of a felonious escape, and punishable as for larceny; whilst if such prisoner so voluntarily by him allowed to escape was committed for obtaining money by false pretenses, the gaoler is then guilty of a misdemeanour, punishable under the common law by fine or imprisonment, or both, but now under sections 165 and 166, post. Greaves, note (r), 1 Russ. 587, says that the gaoler might also, in felonies, be tried, as an accessory after the fact, for voluntary escape: see 1 Hale 619, 620. negligent escape is always a misdemeanour, and is punishable, at common law, by fine or imprisonment or both.

A

What is a prison-breaking, and when was it a felony or a misdemeanour? The offence of prison-breach is a breaking and going out of prison by force by one lawfully confined therein. Any prisoner who frees himself from lawful imprisonment, by what the law calls a breaking, commits thereby a felony or a misdemeanour, according as the cause of his imprisonment was of one grade or the other: R. v. Haswell, R & R. 458. But a mere breaking is not sufficient to constitute this offence; the prisoner must have escaped. The breaking of the prison must be an actual breaking, and not such force and violence only as may be implied by construction of law. Any place where a prisoner is lawfully detained is a prison quoad his offence, so a private house is a prison if the prisoner is in custody therein. If the prison-breaking is by a person lawfully committed for a misdemeanour it is, as remarked before, a misdemeanour, but if the breaking is by a person committed for felony then his offence amounts to felony.

A prisoner was indicted for breaking out from the lockup, being then in lawful custody for felony. It appeared that the prisoner and another man had been given into the custody of a police officer, without warrant, on a charge of stealing a watch from the person. They were taken before

a magistrate. No evidence was taken upon oath but the prisoner was remanded for three days. The prisoner broke out of the lock-up and returned to his home. He appeared before the magistrate on the day to which the hearing of the charge had been adjourned, and on the investigation of the charge it was dismissed by the magistrate, who stated that in his opinion it was a lark and no jury would convict. The prisoner contended that the charge having been dismissed by the magistrate he could not be convicted of prison-breaking, citing 1 Hale, 610, 611, that if a man be subsequently indicted for the original offence and acquitted such acquittal would be a sufficient defence to an indictment for breach of prison. But Martin, B., held that a dismissal by the magistrate was not tantamount to an acquittal upon an indictment, and that it simply amounted to this, that the justices did not think it advisable to proceed with the charge, but it was still open to them to hear a fresh charge against him. The prisoner was found guilty R. v. Waters, 12 Cox, 390.

What is a rescue, and when was it a felony or a misdemeanour?—Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment. A rescue in the case of one charged with felony is felony in the rescuer, and a misdemeanour if the prisoner is charged with a misdemeanour: R. v. Haswell, R. & R. 458. But though, upon the principle that wherever the arrest of a felon is lawful the rescue of him is a felony, it will not be material whether the party arrested for felony, or suspicion of felony, be in the custody of a private person or of an officer, yet, if he be in the custody of a private person, it seems that the rescuer should be shown to have knowledge of the party being under arrest for felony.

See 1 Russ. 581, et seq.; 4 Stephen's Comm. 227, et seq.; 1 Hale, P. C. 595; 2 Hawk. p. 183; 5 Rep. Cr. L. Com., (1840), p. 53; 2 Bishop, Cr. L. 1066; R. v. Payne, L. R. 1 C. C. R. 27.

For forms of indictment: see Archbold, 795; 2 Chit Cr. L. 165; 5 Burn's Just. 137; 3 Burn's Just. 1332; 2 Burn's Just. 10; R. v. Young, 1 Russ. 291.

By section 711, post, upon an indictment for any of these offences the defendant may be found guilty of the attempt to commit the offence charged, if the evidence warrants it.

None of the offences under this part XI are triable at quarter sessions, section 540. Fine when punishment not more than five years, section 958.

ASSISTING ESCAPE OF PRISONERS OF WAR. (New).

160. Every one is guilty of an indictable offence and liable to five years' imprisonment who knowingly and wilfully—

(a) Assists any alien enemy of Her Majesty, being a prisoner of war in Canada, to escape from any place in which he may be detained; or

(b) Assists any such prisoner as aforesaid, suffered to be at large on his parole in Canada or in any part thereof, to escape from the place where he is at large on his parole. 52 Geo. III, c. 156, (Imp.).

BREAKING PRISON.

161. Every one is guilty of an indictable offence and liable to seven years' imprisonment who, by force or violence, breaks any prison with intent to set at liberty himself or any other person confined therein on any criminal charge. R. S. C. c. 155, s. 4.

"Prison" defined, section 3. A section may be given, section 711. section 159, ante.

ATTEMPT, ETC., ETC.

verdict under next

See remarks under

162. Every one is guilty of an indictable offence and liable to two years' imprisonment who attempts to break prison, or who forcibly breaks out of his cell, or makes any breach therein with intent to escape therefrom. R. S. C. c. 155, s. 5.

958.

"Prison" defined, section 3; fine and sureties, section

ESCAPE FROM PRISON, ETC., ETC.

163. Every one is guilty of an indictable offence and liable to two years' imprisonment who

(a) Having been convicted of any offence, escapes from any lawful custody in which he may be under such conviction; or

(b) Whether convicted or not, escapes from any prison in which he is lawfully confined on any criminal charge.