It appears to have been holden, that it is an escape in a constable to discharge a person committed to his custody by a watchman as a loose and disorderly woman, and a street- walker, although no positive charge was made. (q) A negligent escape is where the party arrested or imprisoned of negligent escapes against the will of him that arrests or imprisons him, and escapes. is not freshly pursued and taken again before he has been lost sight of. (r) And, from the instances of this offence mentioned in the books, it seems that where a party so escapes the law will presume negligence in the officer. Thus, if a person in custody on a charge of larceny suddenly, and without the assent of the constable, kill, hang, or drown himself, this is considered as a negligent escape in the constable. ($) And if a prisoner charged with felony break a gaol, it is said that this seems to be a negligent escape; because there wanted either the due strength in the gaol that should have secured him, or the due vigilance in the gaoler or his officers that should have prevented it. (t) But it is submitted that it would be competent to a person charged with a negligent escape under such circumstances to shew in his defence that all due vigilance was used, and that the gaol was so constructed as to have been considered by persons of competent judgment a place of perfect security. Undoubtedly an escape happening from defects in these particulars would come within the principle of guilty negligence in those concerned in the proper custody of the criminal; and neglect in not keeping gaols in a proper state of repair, by those who are liable to the burthen of repairing them, appears in many instances to have been treated as an indictable offence, tending to the great hindrance and obstruction of justice. (u) A person who has power to bail is guilty only of a negligent Negligent escape by bailing one who is not bailable. Thus if a justice of escape by admitting to peace bails a person not bailable by law, it excuses the gaoler, and bail. is not felony in the justice; but a negligent escape, for which he is finable at common law, and by the justices of gaol delivery. (w) (q) Rex v. Bootie, 2 Burr. 864. (r) Dalt. c. 159. 1 Burn. Just. Escape IV. (s) Dalt. c. 159. tiâ remotâ pietateque adhibitâ judicia 2 Inst. 381. (u) See the precedents of indictments for this offence, 4 Wentw. 363. Cro. Circ. Comp. 318. Cro. Circ. Ass. 398. 3 Chit. Crim. L. 668, 669. (t) 1 Hale 600. where it is said that "therefore it is lawful for the gaoler "to hamper them with irons, to pre"vent their escape." But see the note (a) ibid. where it is said that this liberty can only be intended where the officer has just reason to fear au escape, as where the prisoner is unruly, or makes any attempt for that purpose; but that otherwise, notwithstauding the common practice of gaolers, it seems altogether unwarrantable, (w) At common law, according to and contrary to the mildness and hu- 25 Edw. 3. 39. (in the last edition of manity of the laws of England, by the year books mispaged 25 Edw. 3. which gaolers are forbid to put their 82. a.) and by the justices of gaol deprisoners to any pain or torment; Co. livery, by the statute 1 and 2 Ph. and P. C. 34, 35. Custodes gaolarum pœnam M. c. 13. See 1 Hale 596. and as to sibi commissis non augeant, nee cos escapes by admitting to bail or to imtorqueant vel redimant, sed omni sævi- proper liberty, ante, 370. Of retaking a prisoner. After a voluntary escape. After a negligent escape. It is laid down as clear law, that whoever de facto occupies the office of gaoler is liable to answer for a negligent escape, and that it is in no way material whether or not his title to the office be legal. (a) But it seems that an indictment for a negligent escape will only lie against those officers upon whom the law casts the obligation of safe custody, and will not lie against the mere servants of such officer. Thus, where the indictment was against one of the yeomen wardens of the Tower and the gentleman gaoler, for permitting Colonel Parker, who was committed for high treason, to escape, it appeared that the constable of the Tower had committed the colonel to their special care: but the court held that the defendants were not such officers as the law took notice of, and therefore could not be guilty of a negligent escape; and they were acquitted. (y) And upon the same principle another wardour of the Tower appears also to have been acquitted of a negligent escape. (z) It appears, however, that a sheriff is as much liable to answer for an escape suffered by his bailiff as if he had actually suffered it himself; that the court may charge either the sheriff or bailiff for such an escape; and that, if a deputy gaoler be not sufficient to answer a negligent escape, his principal must answer for him. (a) The difference between a voluntary and negligent escape will also require to be attended to in considering the effect of the retaking of a prisoner after he has been suffered to escape. When an officer has voluntarily suffered a prisoner to escape, it is said that he can no more justify the re-taking him than if he had never had him in custody before; because, by his own free consent, he hath admitted that he hath nothing to do with him : but if the party return, and put himself again under the custody of the officer, it seems that it may probably be argued that the officer may lawfully detain him, and bring him before a justice in pursuance of the warrant. (b) It seems to be clearly agreed by all the books that an officer making fresh pursuit after a prisoner, who has escaped through his negligence, may retake him at any time afterwards, whether he find him in the same, or a different county: and it is said generally in some books, that an officer, who has 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 why he should have any manner of advantage from it.(c) If the officer pursue a prisoner, who flies from him, so closely as to retake him without losing sight of him, the law regards the prisoner as being so much in his power all the time as not to adjudge such flight to amount to an escape: but if the officer once lose (x) 2 Hawk. P. C. c. 19. s. 28. (z) Rex v. Rich, Old Bailey, Jan. (a) 2 Hawk. P. C. c. 19. s. 29. and Rex v. Fell, I Lord Raym. 424. 2 Salk. 272. Hawkins says, "But if the sight of the prisoner, it seems to be the better opinion that he will be guilty of a negligent escape, though he should retake him immediately afterwards. (d) And if he has been fined for the offence, it is clear that he will not avoid the judgment of his fine by retaking the prisoner. (e) And it is also clear that he cannot excuse himself 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 fine as his negligence shall appear to deserve. (ƒ) The proceedings against persons charged with having suffered Proceedings escapes must in general be by presentment or indictment, or they by presentmay be by information. (g) ment or indictment, or course. But where persons present in a court of record are committed to by a more prison by such court, the keeper of the gaol, as he is bound to have summary them always ready to produce when called for, if he fail to pro-. duce them, will be adjudged guilty of an escape, without further inquiry; unless he have some reasonable matter to allege in his excuse; as that the prison was set on fire, or broken open by enemies, &c. for he will be concluded by the record of the commitment from denying that the prisoners were in his custody. (h) And some have holden, (i) that if a gaoler say nothing in excuse of such an escape, it shall be adjudged voluntary: but it seems difficult to maintain that where it stands indifferent whether an escape be negligent or voluntary, it ought to be adjudged a crime of so high a nature, without a previous trial. (k) With respect to other prisoners not committed in such manner, but in the custody of a gaoler or other person by any other means whatsoever, it seems to be agreed that the person who had them in custody is in no case punishable for an escape, until it be presented. (1) But it is laid down as a rule that though, where an escape is fineable, the presentment of it is traversable; yet that where the offence is amerciable only, there the presentment is of itself conclusive; such amerciaments being reckoned amongst those minima de quibus non curat lex: (m) and this distinction is said to be well warranted by the old books. (n) It should be observed that it is laid down in the books that a person who has suffered another to escape cannot be arraigned for such escape as for felony, until the principal be attainted; on the ground that he is only punishable in this degree as an accessory to the felony, and that the general rule is, that no accessory ought to be tried until the principal be attainted; (0) but that he may be (d) Staundf. P. C. 33. 1 Hale 602. 2 Hawk. P. C. c. 19. s. 6, 13. (e) 2 Hawk. P. C. c. 19. s. 12, 13. (f) Staundf. P. C. 33. 1 Hawk. P. C. c. 28. s. 11, 12. 2 Hawk. P. C. c. 19. s. 6, 13. (g) Rex v.the Gaoler of Shrewsbury, 1 Str. 532. where the court refused to grant an attachment against the gaoler for a voluntary escape of one in execution for obstructing an excise officer in the execution of his office, but ordered him to shew cause why there should not be an information. (h) 2 Hawk. P. C. c. 19. s. 15. (i) Staundf. P. C. 34. 1 Hale 599. 603. (k) 2 Hawk. P. C. c. 19. s. 15. (m) Staundf. P. C. c. 32. p. 36. (n) 2 Hawk. P. C. c. 19. s. 21. and see post, 376. as to escapes fineable or amerciable. (0) See ante, 36. et seq. By the 1 Ann. st. 2. c. 9. an accessory may be tried where the principal offender has been convicted, &c. though not attainted. Ante, p. 38. In the Cro. Circ. Ass. 338 is an indictment as for a misdemeanor against a gaoler, for wilfully Of the indictment for an escape. Of the trial. indicted and tried for a misprision before any attainder of the prineipal offender; for, whether such offender were guilty or innocent, it was a high contempt to suffer him to escape. If, however, the commitment were for high treason, and the person committed actually guilty of it, it is said that the escape is immediately punishable as high treason also, whether the party escaping be ever convicted of such crime or not; and the reason given is, that there are no accessories in high treason. (o) Every indictment for an escape, whether negligent or voluntary, must expressly shew that the party was actually in the defendant's custody for some crime, or upon some commitment upon suspicion; (p) and judgment was arrested upon an indictment which stated that the prisoner was in the defendant's custody, and charged with a certain crime, but did not state that he was committed for that crime; for a person in custody may be charged with a crime, and yet not be in custody by reason of such charge.(g) But where a person was committed to the custody of a constable by a watchman, as a loose and disorderly woman and a streetwalker, it was holden, upon an indictment against the constable for discharging her, that by an allegation of his being charged with her, "so being such loose, &c." it was sufficiently averred that he was charged with her "as such loose, &c. ;" and it was also holden not to be necessary to aver that the defendant knew the woman to be a street-walker. (r) And every indictment should also shew that the prisoner went at large:(s) and also 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. (t) If the indictment be for a voluntary escape, it must allege that the defendant feloniously and voluntarily permitted the prisoner to go at large ;(u) and must also shew 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.(w) But it is But it is questionable 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 case material whether the person who escaped were guilty or not. (x) By the statute Westminster 1. c. 3. the proceedings and trial for the offence of an escape were to be had before the justices in eyre but it was adjudged that the jurisdiction of the Court of King's Bench was not restrained by that statute, that court being permitting a prisoner to escape who (0) 2 Hawk. P. C. c. 19. s. 26. 2 Salk. 272. Lord. Raym. 424. (r) Rex v. Bootie, 2 Burr. 864.; and see as the sufficiency of such aver ments, Rex v. Boyall, 2 Burr. 832. (s) 2 Hawk. P. C. c. 19. s. 14., where it is said that this is most properly expressed by the words exivit ad largum. (4) 2 Hawk. P. C. c. 19. s. 14. But upon an indictment for an escape the court will not intend a pardon; it must be shewn by the defendant, by way of excuse. Rex v. Fell, Lord Raym. 424. (u) Felonicè et voluntarie A. B. ad largum ire permisit. (w) 2 Hawk. P. C. c. 19. s. 14. itself the highest court of eyre.(y) The 31 Edw. 3. c. 14. enacts that the escape of thieves and felons, and the chattels of felons, &c. from thenceforth to be judged before any of the King's justices, shall be levied from time to time, &c. by which it seems to be implied that other justices, as well as those in eyre, may take cognizance of escapes: and it is certain that justices of gaol delivery may punish justices of peace for a negligent escape, in admitting persons to bail who are not bailable.(z) The 1 Rich. 3. c. 3. en acts that justices of peace shall have authority to enquire in their sessions of all manner of escapes of every person arrested and imprisoned for felony. The enactment of the 4 Geo. 4. c. 64 s. 44., as to the evidence Evidence. by the certificate of the clerk of assize, or clerk of the court in which the offender was convicted, has been already mentioned. (1) In considering of the punishment for this offence, it will be Punishment.— necessary again to attend to the distinction between a voluntary and negligent escape. luntary escape. It seems to be generally agreed that a voluntary escape amounts In cases of voto the same kind of crime as the offence of which the party was guilty, and for which he was in custody; whether the person escaping were actually committed to some gaol, or under an arrest only, and not committed; and whether he were attainted, or only accused of such crime, and neither indicted nor appealed. (a) But the voluntary escape of a felon will be within the benefit of clergy, though the felony for which the party was in custody be ousted.(b) An 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 were rightfully entitled to the custody; for the crime is in both cases of the same ill consequence to the public. (c) But no one is punishable in this degree for a voluntary escape but the person who is actually guilty of it: therefore, the principal gaoler is only fineable for a voluntary escape suffered by his deputy.(d) One voluntary escape is said to amount to a forfeiture of a gaoler's office.(e) No escape will amount to a capital offence unless the cause for which the party was committed were actually such at the time of the escape: its becoming a capital offence afterwards, as by the death of a party wounded at the time of the escape, but not then dead, will not be sufficient. (f) Whenever a person is found guilty upon an indictment or presentment of a negligent escape of a criminal actually in his custody, he ought to be condemned in a certain sum, to be paid to Of the punishof negligent escapes. ment in cases |