Sivut kuvina

4. An escape of a person arrested upon criminal process, by eluding the vigilance of his keepers before he is put in hold, is also an offense against public justice, and the party himself is punishable by fine or imprisonment. But the officer per[130] mitting such escape, either by negligence or connivance, is much more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought, in strictness. of law, to submit himself quietly to custody till cleared by the due course of justice. Officers, therefore, who, after arrest, negligently permit a felon to escape, are punishable by fine;e but voluntary escapes, by consent and connivance of the officer, are a much more serious offense, for it is generally agreed that such escapes amount to the same kind of offense, and are punishable in the same degree, as the offense of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. And this whether he were actually committed to jail, or only under a bare arrest. But the officer can not be thus punished till the original delinquent hath actually received judgment or been attainted upon verdict, confession, or outlawry of the crime for which he was so committed or arrested; otherwise it might happen that the officer might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man. But, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned for a misdemeanor.g°†

4. Escapes.

d2 Hawk., P. C., 122.

e. 1 Hal., P. C., 600.

f Ibid., 590; 2 Hawk., P. C., 134.
the arrest, and of the officer's authority.
3 Campb., 68; 1 Mood., C. C., 207.

The willful refusal to aid a peace offi-
cer in the execution of his duty, in order
to preserve the peace, is also an indict-
able misdemeanor at common law.
C. & Mar., 314.*


(6) There must be an actual arrest, as well as a lawful arrest, to make an escape criminal in an officer. 2 Hawk., c. 19, s. 1, 2. It must also be for a criminal matter. Id., s. 3. And the imprisonment must be continuing at the time of the offense. Id., s. 4; Russ., 531; 1 Hale, 594. In some cases it is an escape to suffer a prisoner to have greater liberty than can by law be allowed him; as, to admit him to bail

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* Persons resisting an officer attempting to arrest a felon expose themselves to be charged as accessories after the fact.-(See ante, p. 35, n. *.) Besides, they are liable to be proceeded against as for contempt of court.-(2 R. S., 441, § 81.) The refusal to aid an officer in overcoming resistance to the execution of process subjects the delinquent to an indictment for a misdemeanor, and to fine and imprisonment.-(Ibid., § 82.)

See statutory provisions as to escapes, officers permitting escapes, breach of prison by offenders, and rescues, 2 R. S., 683, 4, 5.


5. Breach of prison by the offender himself, when committed 5. Breach of for any cause, was felony at the common law;h or even conspiring to break it. But this severity is mitigated by the statute de frangentibus prisonam, 1 Edw. II., which enacts, that no person shall have judgment of life or member for breaking prison, unless committed for some capital offense. So that to break prison and escape, when lawfully committed for any treason or felony, remains still felony as at the common law; and to break prison (whether it be the county jail, the stocks, or other usual place of security), when lawfully confined upon any other inferior charge, is still punishable as a high misdemeanor by fine and imprisonment.' For the statute which ordains that [131] such offense shall be no longer capital never meant to exempt it entirely from every degree of punishment.j*

6. Rescue is the forcibly and knowingly freeing another from 6. Rescue. an arrest or imprisonment; and it is generally the same offense in the stranger so rescuing as it would have been in a jailer to have voluntarily permitted an escape. A rescue, therefore, of one apprehended for felony is felony; for treason, treason; and for a misdemeanor, a misdemeanor also. But here, likewise, as upon voluntary escapes, the principal must first be attainted or receive judgment before the rescuer can be punished, and for the same reason; because, perhaps, in fact, it may

i Bract., 1. 3, c. 9.

j 2 Hawk., P. C., 128.

(8) But though the principal be not
convicted, still the party rescuing may
be punished as for a misdemeanor. 2
Hawk., c. 21, s. 8. Before the passing
of the 1 & 2 Geo. IV., c. 88, s. 1, the
rescuing a person under a commitment
for a felony was not a transportable of
fense, but was punishable only as a
felony within clergy at common law.
Russ. & R., C. C., 432. By that act,
however, the rescuing or aiding the
rescue of a person charged with or con-
victed of felony, or on suspicion thereof,
if the rescuer be convicted, and would
have been, before the passing of the act,
liable to imprisonment not exceeding
one year, he may now be transported
for seven years, or imprisoned with hard
labor for not less than one, and not more
than three years.

By the 5 Geo. IV., c. 84, s. 22, the
rescuing, or attempting to rescue, or as-
sisting in rescuing a person sentenced to
transportation or banishment, who, hav-
ing been found unduly at large, has been
retaken, and is in custody of
any officer,
&c., to be reconveyed to prison; or
causing to be conveyed any disguise,
&c., to such offender, is punishable in

h 1 Hal., P. C., 607.

tion. It has been held that the offense 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, and has no intention to escape. Russ. & R., C. C., 196.-[CHITTY.]

See the stat. 56 Geo. III., c. 63, s. 44, 7 & 8 Geo. IV., c. 28, s. 8 & 9, and 1 Vict., c. 91, s. 1, as to escapes from Milbank prison; 5 Vict., c. 29, s. 25, as to escapes from Pentonville prison; 1 & 2 Vict., c. 82, s. 12, 13, as to Parkhurst prison.

(7) Under the 19 Geo. III., c. 74, s. 4, and 7 & 8 Geo. IV., c. 28, s. 8, the party may be whipped three times. The throwing down loose bricks at the top of a prison wall, placed there to impede escape and give alarm, is a prison breach, though they are thrown down by accident in attempting to escape by other means. Russ. & R., C. C., 458.[CHITTY.] The offender may be tried either in the county where the offense was committed, or in that in which he was apprehended and retaken. 4 Geo. IV., c. 64, s. 44.

* See ante, p. 130, n.


urn out that there has been no offense committed. By statute
11 Geo. II., c. 26, and 24 Geo. II., c. 40, if five or more persons
assemble to rescue any retailers of spirituous liquors, or to as-
sault the informers against them, it is felony, and subject to
transportation for seven years. By the statute 16 Geo. II., c.
31, to convey to any prisoner in custody for treason or felony
any arms, instruments of escape, or disguise, without the
knowledge of the jailer, though no escape be attempted, or any
way to assist such prisoner to attempt an escape, though no
escape be actually made, is felony, and subjects the offender to
transportation for seven years; or if the prisoner be in custody
for petit larceny or other inferior offense, or charged with a
debt of £100, it is then a misdemeanor, punishable with fine
and imprisonment.' And by several special statutes, to res-
cue, or attempt to rescue, any person committed for the offenses
enumerated in those acts, is felony without benefit of clergy;
and to rescue, or attempt to rescue, the body of a felon exe-
cuted for murder, is single felony, and subject to transportation
for seven years. Nay, even if any person be charged with
of the offenses against the Black Act, 9 Geo. I., c. 22, and
being required, by order of the privy council, to surrender him-
self, neglects so to do for forty days, both he, and all that know-
ingly conceal, aid, abet, or succor him, are felons without benefit
of clergy.10*

7. Another capital offense against public justice is the return

1 Hal., P. C., 607; Fost., 344.
16 Geo. I., c. 23 (Transportation);
9 Geo. I., c. 22 (Black Act); 8 Geo. II.,
c. 20 (Destroying turnpikes, &c.); 19

the same manner as if such person had
been confined in a prison. See n. (11),

By the 25 Geo. II., c. 37, s. 9, the
rescuing or attempting to rescue out of
prison any person committed for or
found guilty of murder, or any murderer
going to or during execution, was made
guilty of felony, punishable with death;
the punishment is, however, reduced by
the 1 Vict., c. 91, s. 1, to transportation
for life or not less than fifteen years, or
imprisonment not exceeding three years.

(9) This act does not extend to cases where an actual escape is made. 2 Leach, 662; 3 P. Wms., 439. The of fense of delivering the instrument to the prisoner is complete, though he has been pardoned of the offense of which he was convicted, on condition of transportation; and a party may be convicted, though there is no evidence that he knew of what specific offense the per

Geo. II., c. 34 (Smuggling. See the 52
Geo. III., c. 143, s. 11); 25 Geo. II., c.
37 (Murder); 27 Geo. II., c. 15 (Black

son he assisted had been convicted. Russ. & R., C. C., 526; sed quare if the act is not repealed by the 4 Geo. IV., c. 64, s. 1.

By the 4 Geo. IV., c. 64, s. 43, convey. ing into a prison any disguise, or instrument to facilitate the escape of any prisoner, and delivering the same to such prisoner against the keeper's consent, and aiding the escape of a prisoner from prison, whether an escape be effected or not, is felony; and the offender may be transported for not exceeding four teen years. The 44th sect. points out the mode of trial and conviction of of fenders making escapes, &c.-[CHIT TY.]

(10) But now the rescuing a party in custody for an offense against the Black Act is only punishable with transportation, or imprisonment and hard labor. 4 Geo. IV., c. 54, s. 1.-[CHITTY.]

*See ante, p. 130, n. *.

ing from

ing from transportation, or being seen at large in Great Britain 7. Returnbefore the expiration of the term for which the offender was transportaordered to be transported, or had agreed to transport himself. tion. This is made felony without benefit of clergy in all cases, by statutes 4 Geo. I., c. 11, 6 Geo. I., c. 23, 16 Geo. II., c. 15, and 8 Geo. III., c. 15, as is, also, the assisting them to escape from such as are conveying them to the port of transportation."

reward to

8. An eighth is that of taking a reward under pretense of 8. Taking helping the owner to his stolen goods. This was a contrivance help to carried to a great length of villainy in the beginning of the stolen goods. reign of George the First; the confederates of the felons thus disposing of stolen goods at a cheap rate to the owners themselves, and thereby stifling all further inquiry. The famous Jonathan Wild had under him a well-disciplined corps of thieves, who brought in all their spoils to him; and he kept a sort of public office for restoring them to the owners at half price. To prevent which audacious practice, to the ruin and in defiance of public justice, it was enacted by statute 4 Geo. I., c. 11, that whoever shall take a reward under the pretense of helping any one to stolen goods shall suffer as the felon who stole them, unless he causes such principal felon to be apprehended and brought to trial, and also gives evidence against him. Wild, still continuing in his old practice, was upon this statute at last convicted and executed.m12

m See stat. 6 Geo. I., c. 23, § 9.

It is an offense within the statute, to take money under pretense of helping a man to goods stolen from him, though

(11) These provisions are virtually 1; [and by 7 & 8 Geo. IV., c. 29, s. 58, repealed by the 5 Geo. IV., c. 84, which instead thereof, the offender may be revives and consolidates into one act the transported for life, or for not less than laws relative to the transportation of of seven years, or be imprisoned for not fenders. By the 22d section, it is enact- more than four years.] By the 6 Geo. ed, that if any offender, sentenced or or- I., c. 23, s. 9, a reward of £40 is given dered to be transported or banished, or to a party apprehending and prosecuting having agreed to transport or banish to conviction one of this description of himself, shall be afterward found at offenders. large, without lawful excuse, before the expiration of the term of transportation or banishment, he shall suffer death without benefit of clergy. [The punishment the prisoner had no acquaintance with is reduced by the 4 & 5 Will. IV., c. 67, the felon, and did not pretend that he to transportation for life, with previous had, and though he had no power to apimprisonment for any term not exceed prehend the felon, and though the goods ing four years.] If the prisoner can were never restored, and the prisoner show such circumstances of poverty or had no power to restore them. 1 Mood., sickness, which amount to an absolute C. C., 76. It has been doubted whethimpossibility to transport himself, or er the offender can be punished in case leave the kingdom, he will not be with- the original felon has, by death or other in the act. 1 Leach, 396. By the same means, escaped conviction. 1 Leach, sect. of 5 Geo. IV., c. 84, a reward of 15. But such a construction seems in £20 is given for prosecuting an offend- consistent with the intent of the act. 2 er against the act to conviction.-[CHIT- East, P. C., 770, 1. The party may be TY.] convicted on the evidence of the principal felon. 1 Leach, 18; 2 East, P. C.. 770; 1 Leach, 418.--[CHITTY.]*

(12) Now the punishment of death is taken away by the 1 Geo. IV., c. 115, s.

The English statutes on this subject have not been re-enacted in New York.

9. Receiving of stolen goods, knowing them to be stolen, is also a high misdemeanor and affront to public justice. We have seen in a former chaptern that this offense, which is only a misdemeanor at common law, by the statutes 3 & 4 W. & M., c. 9, and 5 Ann., c. 31, makes the offender accessory to the theft and felony. But because the accessory can not, in general, be tried, unless with the principal, or after the principal is convicted, the receivers by that means frequently eluded justice. To remedy which, it is enacted by statute 1 Ann., c. 9, and 5 Ann., c. 31, that such receivers may still be prosecuted for a misdemeanor, and punished by fine and imprisonment, though the principal felon be not before taken so as to be prosecuted [133] and convicted. And, in case of receiving stolen lead, iron, and certain other metals, such offense is, by statute 29 Geo. II., c. 30, punishable by transportation for fourteen years. So that now the prosecutor has two methods in his choice: either to punish the receivers for the misdemeanor immediately, before the thief is taken ;P or to wait till the felon is convicted, and then punish them as accessories to the felony. But it is provided by the same statutes, that he shall only make use of one, and not both, of these methods of punishment. By the same statute, also, 29 Geo. II., c. 30, persons having lead, iron, and other metals in their custody, and not giving a satisfactory account how they came by the same, are guilty of a misdemeanor, and punishable by fine and imprisonment. And, by statute 10 Geo. III., c. 48, all knowing receivers of stolen plate or jewels, taken by robbery on the highway, or when a burglary accompanies the stealing, may be tried as well before as after the conviction of the principal, and whether he be in or out of custody; and, if convicted, shall be adjudged guilty of felony, and transported for fourteen years.'


9. Receiving stolen goods.

■ See page 38.

See, also, statute 2 Geo. III., c. 28, 12, for the punishment of receivers

(13) [All the statutes mentioned in the text are now virtually repealed by the general enactment of the 7 & 8 Geo. IV., c. 29, s. 54, whereby every receiver of any property whatsoever, the stealing of which is felony, knowing the same to be stolen, shall be guilty of felony, and may be indicted and convicted either as an accessory after the fact, or for a substantive felony; and in the latter case, whether the principal felon shall or shall not have been previously convicted, or

of goods stolen by bum-boats, &c., in the Thames.

P Foster, 373.

shall or shall not be amenable to justice; and is liable to transportation for any term not exceeding fourteen nor less than seven years, or imprisonment not exceeding three years, with whipping, if the court think fit. By s. 55, where the original offense is a misdemeanor, the receiver may be prosecuted for a misdemeanor, and is liable to transportation for seven years, or imprisonment not exceeding two years, and whipping; and by s. 60, where the original offense is punishable

*In New York, the buying or receiving stolen property, knowing it to have been stolen, subjects the offender to fine and imprisonment in the county jail, or in the state prison, in the discretion of the court, for a term not exceeding five years. On the trial of the offender, it is not necessary to prove the conviction of the principal, 2 R. S., 480, § 71, 72; and the trial may be had in any county where the property was received, although the theft was committed in another county--(2 R. S., 726, § 43.)

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