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disorderly woman, and a street-walker, although no positive charge was made. Rex v. Bootie, 2 Burr. 864.
As to what is an escape, and what a negligent, and what an involuntary one, see infra.
IV. What is an Escape, and what a negligent, or volun
In order to make an escape there must be an actual arrest; and there- What is an escape. fore 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 Must be a previous escape. 2 Hawk. c. 19, s. 1; 1 Hale, 594. As to what is an arrest, see arrest.
ante Arrest, Vol. I.
The arrest must be also justifiable; for if it be either for a supposed And justifiable. 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 Hawk. c. 19, s. 2.
And as the imprisonment must be justifiable, so it must be also for a criminal offence. Id. s. 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. 2 Hawk. c. 19, s. 4; 1 Russ. C. & M. 531.
And for a criminal
And not detained only for fees.
Also, it is an escape in some cases to suffer a prisoner to have greater Too much liberty, 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 Hawk. c. 19, s. 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 Losing sight, an 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 Hawk. c. 19, s. 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 (O. B. January, 1694) were of opinion, that the defendants were not such officers as the law took notice of,
* By 55 Geo. III. c. 50, fees payable by prisoners are abolished. See Gaols, vol. II.
Voluntary escape, what.
Negligent escape, what.
Suffering a prisoner to kill himself.
Prisoner breaking gaol.
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 Clancarty, was acquitted.
Wherever an officer, who hath the custody of a prisoner, charged with and guilty of a capital offence, doth knowingly give him his liberty, with an intent to save him from his trial or execution, this is a voluntary escape. 2 Hawk. c. 19, s. 10.
A negligent escape is, when the party arrested or imprisoned doth escape against the will of him that arrested or imprisoned 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.
If a prisoner for felony break the gaol, this seems to be a negligent escape in the gaoler, because there wanted either that due strength in the gaol, that should have secured him, or that due vigilance in the gaoler or his officers to have prevented it; and therefore it is lawful for the gaoler to hamper them with irons to prevent their escape; for 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.
Let go voluntarily,
V. Retaking a Person escaped.
If an officer hath arrested a man by virtue of a warrant, and then taketh cannot be retaken. his promise that he will come again, and so letteth him go, the officer cannot, after arrest, take him again by force of 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 Hawk. c. 13, s. 9.
Breaking open doors to retake.
Retaking excuseth not the escape.
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 wherever 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 Hawk. c. 19, S. 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 Hawk. c. 14, s. 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 Hawk.c. 19, s. 13. In the case of Ryland v. Lavender, 2 Bing. 65, the 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 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.
VI. Endictment for an Escape.
The indictment for an escape, whether negligent or voluntary, must Indictment. show that the party was actually in the defendant's custody for some crime, or upon some commitment on suspicion; and it is not sufficient to say that he was in the defendant's custody, and charged with such a crime; for that is no allegation that he was in custody upon that charge: 2 Hawk. P. C. c. 97, s. 4. It should show that the prisoner went at large, and the time when the offence was committed for which the party was in custody, not only that it may appear that it was prior to the escape, but also that it was subsequent to the last general pardon. An indictment for a voluntary escape must allege that the defendant feloniously and voluntarily permitted the prisoner to go at large, and must also show the species of crime for which the party was imprisoned; for it will not be sufficient to say, in general, that he was in custody for felony, &c. It is questionable, however, whether such certainty, as to the nature of the crime, be necessary in an indictment for a negligent escape, as it is not, in such a case, material whether the person who escaped were guilty or not: 1 Russ. 374. Coll. Stat. tit. Escape.
VII. Trial and Conviction for an Escape.
ducing him, a conviction.
If the prisoner be of record in the court, and the gaoler being called Gaoler not procannot 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 another to escape who was in his custody for felony, cannot be arraigned for such escape as for felony until the principal be 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 Hawk. c. 19, s. 26; 2 Inst. 591, 592.
Felony to be tried before the escape.
Method of trial and conviction of offenders making escapes, &c.
4 Geo 4. c. 64, 8. 44.
By the 4 Geo. IV. c. 64, s. 44. "And, to the intent that prosecutions for escapes, breaches of prison, and rescues, may be carried on with as little trouble and expense as is possible, be it enacted, that any offender escaping, 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 case of any prosecution for any such escape, attempt to escape, 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 the clerk of assize, or other clerk of the court in which such Evidence. offender 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
Not to extend to certain prisons,
nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced."
Sec. 48. Gaol, though locally situate out of the county, &c. shall be deemed part of the county, &c., and subject to the jurisdiction of the justices of the county, &c.
Sec. 96. "And be it further enacted, that nothing in this act contained shall extend to the royal hospital of Bethlehem and prison of Bridewell, nor to the King's Bench or Fleet Prison, or to the prison of the Marshalsea, or Palace Courts, the general Penitentiary at Milbank, nor to the Penitentiary at Gloucester; nor to any ships or vessels provided in any port or navigable river for the reception and employment of convicts sentenced to transportation; nor to exempt any such convicts from any punishment or discipline to which they were liable by law before the passing of
Escape by private person.
Escape by officer.
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 presentment of a negligent escape of a criminal actually in his custody, he is punishable by fine and imprisonment, according to the quality of the offence. 2 Hawk. c. 19, s. 31; c. 20, s. 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 Hawk. c. 19, s 29; Rex v. Fell, 1 Ld. Raym. 424.
Mr. Hawkins, although he is one of the most accurate of all writers, yet hath inserted in this place certain penalties for escapes which were expired above two hundred years before. 2 Hawk. c. 19, s. 34, 35. Vide the edition by Mr. Curwood.
It seems to be generally agreed, that a voluntary escape suffered by an officer amounts to the same kind of crime, and is punishable in the same degree as the offence of which the party was guilty, and for which he was in custody; whether it be treason, felony, or trespass. 2 Hawk. c. 19, s. 22. if the cause be expressed in the commitment, 2 Inst. 52. ante, Commitment, Vol. I.
But yet a voluntary escape is no felony, if the act done were not felony at the time of the escape made, as in case of a mortal wound given, and the party not dying till after the escape; but the officer may be fined to the value of his goods. Dalt. c. 159.
Also a voluntary escape suffered by one who wrongfully takes upon him the keeping of a gaol, seems to be punishable in the same manner as if he was never so rightfully entitled to such custody; for that the crime is in both cases of the same ill consequence to the public; and there seems to be no reason that a wrongful officer should have greater favour than a rightful, and that for no other reason but because he is a wrongful one. 2 Hawk. c. 19, s. 23.
But it seemeth to be clear that no one is punishable as for felony for the voluntary escape of a felon, but the person only who is actually guilty of
it; and therefore that the principal gaoler is only fineable for a voluntary PUNISHMENT. escape suffered by his deputy; for that no one shall suffer capitally for the crime of another. Id. s. 27.
And therefore, although in all civil causes the sheriff is to be responsible, or the gaoler, at election, yet if the gaoler do voluntarily suffer a felon in his custody to escape, this, inasmuch as it reacheth to life, is felony only in the gaoler that was immediately trusted with the custody, and not in the sheriff. 1 Hale, 597.
For the escape must be voluntarily permitted in him that permitted it, which could not be in the high sheriff, though it were such in the gaoler, for he was not privy to it, and therefore could not do it feloniously; but it was a negligent escape in him, in trusting such a person with the custody of his prisoners that would be false to his trust, and therefore the sheriff shall pay, but not corporally suffer for the miscarriage of his gaoler. 1 Hale, 597, 598.
But although the felony for which a man is committed be not within clergy, yet the person who voluntarily suffers him to escape shall have the benefit of the clergy. 1 Hale, 599. See now ante, Clergy, Benefit of, Vol. I. The Mutiny Act in general enacts, that if any offender, under sentence of death by a court-martial, shall obtain a conditional pardon [viz. on transportation], all the laws in force touching the escape of felons under sentence of death shall apply to such offender, and to all persons aiding, abetting, or assisting, in any escape or intended escape of any such offender, or contriving any such escape, from the time when an order [for his transportation] shall be made by a justice or baron, and during all the proceedings had for the purposes mentioned in the act. See post, Military Law, Vol. III.
A former statute, 37 Geo. III. c. 140, s. 6, contains a similar provision with respect to offenders under sentence of death by a naval court-martial, and allowed the benefit of a conditional pardon. The 52 Geo. III. c. 156. provides against the aiding of the escape of prisoners of war, and enacts, that "every person who shall 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 conviction, be adjudged guilty of felony, and be liable to be transported for life, or for fourteen or seven years.
Section 2. also declares and enacts, that 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 within the act. There is a further provision as to assisting such prisoners in their escape after they had got upon the high
Section 3. enacts, "that 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." It is also provided, that offences committed upon the high seas, and not within the body of any county, may be tried in any county within the realm.
By section 4. the act is not to prevent offenders from being prosecuted as they might have been if the act had not been passed; but no person prosecuted otherwise than under the provisions of the act is to be
Escape of offenders sentenced by a martial, and conditionally par
As to those sencourt-martial.
tenced by a naval
Persons aiding the
of war made liable to transportation.