PUNISHMENT. liable to be prosecuted for the same offence under the act; and no person prosecuted under the act is, for the same offence, to be otherwise prosecuted. Rescue and prison-breach. Returning from transportation. The offence of aiding a prisoner of war to escape is not complete if such prisoner is acting in concert with those under whose charge he is merely to detect the defendant, who was supposed to have assisted in the escape of other prisoners, and such prisoner having no intention to escape. Rex v. Martin, Russ. & R. C. C. 196. As to the punishment of persons guilty of rescuing and breaking prison, see post, Rescue, Prison-Breach, Vol. V. As to the offence and punishment relating to escaping after transportation, 5 Geo. IV. c. 84., see post, Transportation, Vol. V. Aiding a prisoner convicted of treason or felony, or committed for these offences, in an attempt to escape. IX. Aiding in attempting to escape. The mere aiding an attempt of persons confined to make an escape, though no escape should ensue, is made highly penal by stat. 16 Geo. II. c. 31, which enacts, "that if any person shall assist any prisoner to attempt his escape from any gaol, though no escape be actually made, if such prisoner were then attainted or convicted of treason or felony (except petty Aiding, &c. a pri- larceny), or lawfully committed to or detained in any gaol for treason or felony (except petty larceny) expressed in the warrant of commitment or detainer,† he shall he guilty of felony, and be transported for seven years: and if such prisoner were then convicted of, committed to, or detained in gaol for petty larceny, or any other crime not being treason or felony, expressed in the warrant of commitment or detainer, or was then in gaol upon any process for debt, damages, costs, or sum of money, amounting to 100%, he shall be guilty of a misdemeanor and be liable to fine and imprison soner convicted or committed for petty larceny, &c. ment." The third section enacts, "that if any person shall assist any prisoner to attempt to escape from any constable, or other officer or person who shall have the lawful charge of him in order to carry him to gaol, by virtue of a warrant of commitment for treason or felony (except petty larceny), expressed on such warrant; or if any person shall assist any felon to attempt his escape from on board any boat, ship, or vessel, carrying felons for transportation, or from the contractor for the transportation of such felons, or his agents, or any other person to whom such felon shall have been lawfully delivered in order for transportation, he shall be guilty of felony, and be transported for seven years." All prosecutions on this act to be commenced within a year after the offence committed. The stat. 16 Geo. II. c. 31, does not extend to cases where an actual escape is made, but must be confined to cases of an attempt, without effecting the escape itself. Mr. J. Buller, in delivering the opinion of the judges (O. B. June, 1796), observed, "the statute purports to be made for the further punishing of those persons who shall aid and assist persons attempting to escape, and makes the offence felony: it creates a new felony; but the offence of assisting a felon in making an actual escape was felony before, and therefore does not seem to fall within the view or intention of the legislature when they made this statute." Rex v. Tilley and others, O. B. April Sess. 1795; 2 Leach, 662; see also Rex v. Burridge, 3 P. Wms. * This act is not actually repealed by the 4 Geo. IV. c. 64. post, 11; but its provisions are thereby, in many respects, altered. t + This has been held to mean "clearly and plainly expressed;" so that a case where the commitment is on suspicion only is not within the act. Walker's case, 1 Leach, 97; Greeniff's case, 1 Leach, 363; and Gibbon's case,\ Leach, 98, note (a) S. P. 439; 1 Hale, 621; R. v. Young and Chissell, Winchester Lent Ass. 1801, cor. Le Blanc, J. Burn, J. 24 ed. 935. Delivering instruments is within the act, though the prisoner has been pardoned of the offences of which he has been convicted, on condition of transportation. Rex v. Shaw, R. & R. Cc. 526. The stat. 4 Geo. IV. c. 64, s. 43, enacts, that "If any person shall convey or cause to be conveyed into any prison to which this act shall extend, (post, Gaols, Vol. II.) any mask, vizor, or other disguise, or any instrument or arms proper to facilitate the escape of any prisoners, and the same shall deliver, or cause to be delivered, to any prisoner 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 any person shall, by any means whatever, aid and assist any prisoner to escape, or in attempting to escape, from any prison, every person so offending, whether an escape be actually made or not, shall be guilty of felony, and being convicted thereof, shall be transported beyond the seas, for any term not exceeding 14 years.' See a similar provision, stat. 16 Geo. II. c. 31, s. 2. See the 44th section as to the trial and conviction of offenders. Ante 7. AIDING IN. Conveying vizors, &c. into prisons to assist prisoners to Transportation for assisting pri in Forasmuch as J. H., keeper of the gaol (or house of correction) at the county aforesaid, hath this day made information and complaint before me, Sir G. C., bart., one of His Majesty's justices of the peace acting in and for the said county of that A. O. hath unlawfully and wilfully escaped from the said gaol (or house of correction), and from and out of the custody of him the said J. H., the keeper thereof, before the expiration of a certain term for which he the said A. O. was ordered to be imprisoned [and kept to hard labour] therein. These are therefore to command you the said constable forthwith to apprehend and bring before me, or some other of His Majesty's justices of the peace for the said county, the body of the said A. Õ., to answer unto the said complaint, and to be further dealt with according to law. Herein fail you not. Given under my hand and scal this day of one thousand eight hundred and G. C. (L. S.) constable, for a (The county wherein the commitment is made.) J. P. esquire, one of Commitment of a His Majesty's justices of the peace for the said county, to the constable of in the said county, and to the keeper of the common gaol at county. , in the said a prisoner. These are to command you the said constable, in His Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the said common gaol the body of C. D., charged this day before me the said justice, on the oath of A. B. of- and others, for that he the said C. D. [state the offence thus]: On, &c., at, &c., in the said county,having one Č. D. in his custody, under and by virtue of a warrant of one of His Majesty's justices of the peace, on suspicion of having feloniously, &c. [as in the warrant], did unlawfully and negligently permit the said C.D. to escape. And you the said keeper, &c. [as usual, to the end thus:] And you the said keeper are hereby required to receive the said C. D. into your custody in the same [common guol], and him there safely to keep until he shall be thence delivered by due course of law. Herein fail you not. Given under my hand and seal the , in the year of our Lord. day of * See 4 Chit. C. L. 78. J. P. FORMS. Indictment against a constable for a negligent escape. Indictment against a gaoler for a voluntary escape. Indictment against the turnkey of a gaol for a misdemeanor, in permitting a person committed on a warrant for a misdemeanor to escape. at The jurors for our Lord the King upon their oath present, that on, &c., at, &c., aforesaid, one A. I., of, &c., came before J. P., esquire, then and yet one of the justices of our said Lord the King, assigned to keep the peace in the said county, and also to hear and determine divers felonies, trespasses, and other misdemeanors in the said county committed; and the said A. I. did, then and there, on his oath before the same justice, charge, accuse, and give information against one A. O., of, &c. for a certain misdemeanor, in taking fish out of the pond of in the said county, [or as the offence shall be]: Whereupon he the said J. P., the justice aforesaid, did then and there, to wit, at aforesaid, in the county aforesaid, make a certain warrant, under his hand and seal, in due form of law, directed to the constable of aforesaid, in the county aforesaid, thereby requiring him the said constable to take the body of the said A. O., and bring him before the said J. P., the justice aforesaid, to answer to such matters and things as should be alleged against him, touching the said misdemeanor; which said warrant afterwards, to wit, on the same day and year aforesaid, at aforesaid, in the county aforesaid, was delivered to one A. C., then being constable of aforesaid, in due form of law to be executed; by virtue of which said warrant the said A. C. afterwards, to wit, on the day and year aforesaid, at (venue) aforesaid, in the said county, did take and arrest the body of the said A. O., and him the said A. O. in his custody for the cause aforesaid had*. Nevertheless, the said A. C., of, &c. afterwards, to wit, on the day and year aforesaid, the duty of his office in that respect not regarding, at (venue) aforesaid, in the county aforesaid, unlawfully and negligently did permit the said A. O. to escape and go at large out of the custody of the said A. C.; to the great hindrance of justice, in contempt of our said Lord the King and of his laws, and against the peace of our Lord the King, his crown and dignity. The jurors for our Lord the King upon their oath present, that heretofore, to wit, [at the general quarter sessions of the peace holden at here state the record of the conviction of the party who escaped, in the past tense; and then as follows: ] as by the record thereof more fully and at large appears; which said judgment still remains in full force and effect, and not in the least reversed or made void. And the jurors first aforesaid upon their oath aforesaid do further present, that afterwards, to wit, at the said general quarter sessions of the peace above mentioned, he the said C. D. was then and there committed to the care and custody of E. F., he the said E. F. then and still being keeper of the common gaol in and for the said county of there to be kept and imprisoned in the gaol aforesaid, according to and in pursuance of the judgment and sentence aforesaid; and the said E. F. him the said C. D. then and there had in the custody of him the said J. S., for the cause aforesaid, in the gaol aforesaid. And the jurors first aforesaid, upon their oath aforesaid, do further present, that the said E. F., lute of, &c. afterwards, and before the expiration of the six calendar months for which the said C. D. was so ordered to be imprisoned as aforesaid, and whilst the said C. D. was so in the custody of the said E. F. as such keeper of the said common gaol as aforesaid, to wit, on, &c., at, &c., aforesaid, feloniously, [if the offence for which C. D. was convicted were a felony,] unlawfully, voluntarily, and contemptuously, did permit and suffer the said C. D. to escape, and go at large whithersoever he would, whereby the said C. D. did then and there escape out of the said prison, and go at large whithersoever he would, to the great hindrance of justice: in contempt of our said Lord the King and his lares, and against the peace of our said Lord the King, his crown and dignity. at The jurors for our Lord the King upon their oath present, that one W. D., esq., then being one of the justices, &c., in due form of law did make his warrant of commitment, under his hand and scal, to wit, at, &c. bearing date the same day and year aforesaid, directed to the keeper of the common gaol in and for the said county of by which said warrant of commitment the said keeper was required to receive, &c. [here set forth the mittimus] as by the same warrant more fully appears, by virtue of which said warrant of commitment, afterwards, to wit, on the said, &c., at, &c., G. H., then being keeper of the said common gaol of the said county of aforesaid, did receive the said O. O. into his custody in the said common gaol there situate. And at the jurors, &c., that D. M., late of, &c., labourer, well knowing the premises, afterwards, and whilst the said O. Ó. was a prisoner as aforesaid, for the cause aforesaid, to wit, on, &c., with force and arms, at, &c., unlawfully, voluntarily, and unjustly did unlock and open the door of a certain yard wherein the said O. O. was then confined within the said prison, as such prisoner as aforesaid, and did permit him, the said O. O., to go out at a certain back door of, and belonging to, the said gaol, and over a certain wall surrounding and enclosing the same, and to go at large out of the said prison wheresoever he would, he the said D. M. then and there having the custody and keeping of the keys of and belonging to the said prison, whereby the said O. O. did then and there escape out of the said prison, and go at large whithersoever he would. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said D. M. then and there, in manner and form aforesaid, was aiding and assisting the said O. O. to make his escape from and out of the said prison, to the great hindrance of justice, in contempt, &c. [Conclude as in last form.] FORMS. And the jurors aforesaid, on their oath aforesaid, do further present, that the said Second count. 0.0. on the said, &c. was lawfully committed to the custody of the said G. H., then being keeper of his said Majesty's gaol of and for the said county of to wit, at, &c. aforesaid, by virtue of a certain warrant of commitment, duly made, Commencement as usual, as ante, p. 11.] on, &c., at, &c., being lawfully in the custody of one C. D., a constable, under and by virtue of a warrant of one of His Majesty's justices of the peace, on suspicion of having feloniously, &c., [as in warrant,] unlawfully did escape out of the custody of the said C. D.; and that E. F., late of, &c., did then and there [feloniously and] unlawfully aid and assist the said A. B. in so escaping as aforesaid. And you the said keeper, &c. [as usual, as ante, p. 11. to the end.] Commitment of and those aiding State the charge before the magistrate, the commitment, and the defendant's being in the custody of A. C., as in the first form, ante, 12 to the; and then thus:] And the jurors aforesaid upon their oath aforesaid do further present, that the said A. C., late of, &c., so being in the custody of the said A. C., under and by virtue of the warrant aforesaid, afterwards, and whilst he continued in such custody, and before he was delivered by the said A. C. to the said keeper of the gaol of or his deputy, to wit, on the day and year last aforesaid, at, &c., aforesaid, out of the custody of the said A. C., unlawfully did escape, and go at large whithersoever he would: to the great hindrance, &c. [Conclude as in last form of indictment.] Indictment against escaping out of 1 14 FORMS. Commitment for conveying instruments to a prisoner, to enable him to escape, on 4 Geo. 4. c. 66. Indictment for a like offence. Commencement, as ante, p. 11.] on, &c., at, &c., [feloniously and] unlawfully ,[two steel files, ] being instruments proper did convey into the common gaol at to facilitate the escape of prisoners, and delivered the same to C. D., who was then in custody there for [state the offence concisely], with intent to aid and assist the said C. D. to escape from and out of the said gaol, against the form of the statute And you the said keeper, &c. [conclude as usual, in such case made and provided. as ante, p. 11. If the prisoner were not in custody for a felony, omit the word "feloniously."] Proceed as in the second form, ante, 12. to the*, and then thus:] And the jurors aforesaid, upon their oath aforesaid, do further present, that G. H. late of, &c., afterwards, and whilst the said C. D. was and remained in the custody of the said E. F. in the gaol of aforesaid, to wit, on, &c. at, &c., aforesaid, feloniously and [four steel unlawfully did convey and cause to be conveyed into the said gaol of files and one chisel], being instruments proper to facilitate the escape of prisoners; and the same files, being such instruments as aforesaid, then and there feloniously did deliver and cause to be delivered to the C. D. (he the said C. D. then and there being a prisoner in the said gaol, and then and there lawfully detained for the felony and [murder] aforesaid in the said warrant or commitment above mentioned and expressed), without the consent or privity of the keeper or underkeeper of the said gaol of which said [files], being such instruments as aforesaid, were then and there so conveyed into the said gaol, and delivered to the said C. D. by the said G. H. as aforesaid, with the felonious intent to aid and assist the said C. D., so being such prisoner and in custody as aforesaid, to escape and attempt to escape from out of the said gaol, against the form of the statute in such case made and provided, and against the peace of our said Lord the King, his crown and dignity. Estray, what. Escheat. See Forfeiture. Estray. And herein also of Goods waived. ESTRAY is, where any horses, sheep, hogs, beasts, or swans, do come into a lordship, and are not owned by any man. Kitch. 23. Where any horses, sheep, hogs, beasts, or swans]-Bees and other creatures of a wild nature are not within this description, and therefore not to be reckoned amongst stray goods. Nevertheless it seemeth that a swarm of bees, of which the owner hath lost sight, and consequently can make out no property, may be seized for the use of the king, or of the lord of the manor; for it is a maxim of the common law, that such goods whereof no one can claim property do belong to the king; and that which the king hath he may grant to another, and consequently another may prescribe to have the same within such a precinct or lordship. And therefore it is said, that if any take honey or swarms of bees within the demesne of the lord, it is inquirable in the court baron. Kitch. 114. Swans-Swans that are unmarked and wild (being at large and abroad) may be seized by the sheriff for the use of the king, by his prerogative. Dalt. Sher. 80. Also swans marked and tame may be estrays. Kitch. 86. But it seemeth that no other fowl can be estray. Wood, b. 2. c. 2. |