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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 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 nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced."
A certificate under this statute should set forth the effect and substance of the conviction, and not merely state it to have been for felony. Watson's case, R. and R. 468 (a).
Proof of escape suffered by an officer.] In order to render a person suffering an escape liable, as an officer, it must appear that he was a known officer of the law. Thus where the constable of the Tower committed a prisoner to the house of a warder of the Tower, the latter was held not to be such an officer as the law took notice of, and that he could not therefore be guilty of a negligent escape. 1 Chetw. Burn, Escape, 930. But whoever de facto occupies the office of gaoler, is liable to answer for such an escape, and it is no way material whether his title to such an office be legal or not. Hawk. P. C. b. 2, c. 19, s. 28.
It is said by Hawkins to be the better opinion that the sheriff is as much liable to answer for an escape suffered by his bailiff, as if he had actually suffered it himself; and that either the sheriff or the bailiff may be charged for that escape. Hawk. P. C. b. 2, c. 19, s. 28; 1 Hale, P. C. 597; I Russell, 372. But this is opposed to the authority of Lord Holt, who says, that the sheriff is not answerable criminally for the acts of his bailiff. Fell's case, 1 Salk. 272; 1 Lord Raym. 424.
Proof of escape suffered by an officer-proof of arrest.] In case of a prosecution against an officer, either for a voluntary or negligent escape of a prisoner in custody for a criminal offence, it must appear that there was an actual arrest of the offender. Therefore, where an officer having a warrant to arrest a man, sees him in a house and challenges him to be his prisoner, but never actually has *him in his custody, and the [*413 ] party gets free, the officer cannot be charged with the escape. 2 Hawk. P. C. c. 19, s. 1. See Simpson v. Hill, 1 Esp. 431.
Proof of arrest—must be justifiable.] The arrest must be justifiable in order to render the escape criminal; and it is laid down as a good rule, that whenever an imprisonment is so far irregular as that it is no offence in the prisoner to break from it by force, it will be no offence in the officer to suffer him to escape. 2 Hawk. P. C. c. 29, s. 2. A lawful imprisonment must also be continuing at the time of the escape; and therefore, if an officer suffers a criminal who was acquitted, and detained for his fees, to escape, it was not punishable. Id. s. 3, 4. Yet, if a person convicted of a crime be condemned to imprisonment for a certain time, and also till he pay his fees, and he escape after such time is elapsed, without paying them, perhaps such escape may be criminal, because it was part of the (a) 1 Eng. C. C. 468.
punishment that the imprisonment should continue till the fees were paid. But it seems that this is to be intended where the fees are due to others as well as to the gaoler. Id. s. 4.
Proof of voluntary escape.] It is not every act of releasing a prisoner that will render an officer subject to the penalties of voluntarily permitting an escape. The better opinion appears to be that the act must be done malo animo, with an intent to defeat the progress of justice. Thus it is said by Hawkins, that it seems agreed that a person who has power to bail is guilty only of a negligent escape, by bailing one who is not bailable; neither, he adds, is there any authority to support the opinion that the bailing of one who is not bailable, by a person who has no power to bail, must necessarily be esteemed a voluntarily escape. And there are cases in which the officer has knowingly given his prisoner more liberty than he ought, as to go out of prison on promise to return; and yet this seems to have been adjudged to be only a negligent escape. The judgment to be made, adds Hawkins, of all offences of this kind must depend on the circumstances of the case; as the heinousness of the crime with which the prisoner is charged, the notoriety of his guilt, the improbability of his returning, and the intention and motives of the officer. Hawk. P. C. b. 2, c. 19, s. 10; 1 Russell, 370.
Proof of voluntary escape—retaking.] It is laid down in some books, that after a voluntary escape, the officer cannot retake the prisoner, by force of his former warrant, for it was by the officer's consent. But if the prisoner return, and put himself again under the custody of the officer, the latter may lawfully detain him, and bring him before a justice in pursuance of the warrant. 1 Burn, 930, title Escape, citing Dalt. c. 169; 2 Hawk. c. 13, s. 9; 1 Russell, 372. But Hawkins observes, that the purport of the authorities seems to be no more than this, that a gaoler who has been fined for such an escape shall not avoid the judgment by retak[*414] ing *the prisoner; and he adds, "I do not see how it can be collected from hence that he cannot justify the retaking him." Hawk. P. C. b. 2, c. 19, s. 12.
Proof of negligent escape.] A negligent escape is where the party arrested or imprisoned escapes against the will of him that arrested or imprisoned him, and is not freshly pursued and taken before he is lost sight of. Dalt. c. 159; 1 Chetw. Burn, 930, Escape. Thus, if a thief suddenly, and without the assent of the constable, hang or drown himself, this is a negligent escape. Id. It is said by Lord Hale, that if a prisoner for felony breaks the gaol, this seems to be a negligent escape, 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 that should have prevented it. 1 Hale, 600. But upon this passage it has been remarked, that it may be submitted that it would be competent to a person charged with a negligent escape, under such circumstances, to show 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. 1 Russell, 371.
Proof of negligent escape-retaking.]
Where a prisoner escapes
through the negligence of the gaoler, but the latter makes such fresh pursuit as not to lose sight of him until he is retaken, this is said not to be an escape in law; but if he loses sight of him, and afterwards retakes him, the gaoler is liable to be punished criminally. It is scarcely necessary to add, that the sheriff or gaoler, though he had no other means of retaking his prisoner, would not be justified in killing him in such a pursuit. Hawk. P. C. b. 2, c. 19, s. 12, 13; 1 Hale, P. C. 602.
Proof of escape from the custody of a private person.] The evidence upon an indictment against a private person, for the escape of a prisoner from his custody, will in general be the same as on an indictment against an officer. A private person may be guilty either of a voluntary or of a negligent escape, where he has another lawfully in his custody. Even where he arrests merely on suspicion of felony, (in which case the arrest is only justifiable if a felony be proved,) yet he is punishable if he suffer the prisoner to escape. Hawk. P. C. b. 2, c. 20, s. 2. And if, in such case, he deliver over the prisoner to another private person, who permits the escape, both, it is said, are answerable. Ibid. But if he deliver over his prisoner to the proper officer, as the sheriff or his bailiff, or a constable, from whose custody there is an escape, he is not liable. Id. s. 3; 1 Russell, 377.
Punishment.] A negligent escape in an officer is punishable now by a fine imposed on the party at the discretion of the court. 2 Hawk. c. 19, s. 31; 1 Hale, P. C. 600.
A voluntary escape in an officer amounts to the same kind of *offence, and is punishable in the same degree, as the offence of [ *415 ] which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. But the officer cannot be thus punished until after the original delinquent has been found guilty, or convicted; he may, however, before the conviction of the principal party, be fined and imprisoned for a misdemeanor. 2 Hawk. c. 19, s. 26: 1 Hale, 588, 9; 4 Comm. 130.
Where a private person is guilty of a negligent escape, the punishment is fine or imprisonment, or both. 2 Hawk. c. 20, s. 6.
Offence at common law.] The offence of falsely personating another for the purpose of fraud, is a misdemeanor at common law, and punishable as such. 2 East, P. C. 1010; 2 Russell, 479. In most cases of this kind, however, it is usual, where more than one are concerned in the offence, to proceed as for a conspiracy; and very few cases are to be found of prosecutions at common law for false personation. In one case, where
the indictment merely charged that the prisoner personated one A. B., clerk to H. H., justice of the peace, with intent to extort money from several persons, in order to procure their discharge from certain misdemeanors, for which they stood committed, the court refused to quash the indictment on motion, but put the defendant to demur. Dupee's case, ? East, P. C. 1010. It is observed by Mr. East, that it might probably have occurred to the court that this was something more than a bare endeavor to commit a fraud by means of falsely personating another, for that it was an attempt to pollute public justice. Ibid.
Offence by statute.] In a variety of statutes against forgery, provisions are likewise contained against false personation, which in general is made felony. Thus personating the owner of stock, &c. is made felony, by 1 Wm. 4, c. 66, s. 7. Vide post, title Forgery.
Personating bail-acknowledging recovery, &c.] By the 1 Wm. 4, c. 66, s. 11, "if any person shall, before any court, judge, or other person [*416] lawfully authorised to take any recognizance or bail, *acknowledge any recognizance or bail in the name of any other person not privy ar consenting to the same, whether such recognizance or bail in either case be or be not filed; or if any person shall, in the name of any other person not privy or consenting to the same, acknowledge any fine, recovery, [now both abolished] cognovit actionem, or judgment, or any deed to be enrolled, every such offender shall be guilty of felony, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years nor less than two years" (1).
False personation of soldiers and seamen.] The false personation of soldiers and seamen was made felony by several statutes, the provisions of which are now re-enacted in the 5 Geo. 4, c. 107, by the fifth section of which statute, reciting that, whereas it is expedient that the crime of personating and falsely assuming the name and character of any person entitled to prize money or pension, for the purpose of fraudulently receiving the same, shall no longer be punished with death, it is enacted, that, from and after the passing of that act, "whosoever shall willingly and knowingly personate or falsely assume the name, or character of any officer, soldier, seaman, marine, or other person entitled, or supposed to be entitled to any wages, pay, pension, prize money, or other allowance of money for service done in his Majesty's army or navy, or shall personate or falsely assume the name or character of the executor or administrator, wife, relation, or creditor of any such officer or soldier, seaman, marine, or other person, in order fraudulently to receive any wages, pay, pension, prize money, or other allowances of money due, or supposed to be due, for or on account of the services of any such officer or soldier, seaman or marine, or other person, every such person, being thereof convicted, shall be liable at the discretion of the court, to be transported beyond seas for life, or for any term of years not less than seven, or to be imprisoned only, or imprisoned and kept to hard labor in the common gaol or house of correction, for any term not exceeding seven years." (See also 10 Geo. 4, c. 26.)
(1) See Renoard v. Noble, 2 Johns. Cas. 293.
The statute 5 Geo. 4, c. 107, as well as the former statute makes use of the words "some officer, &c. entitled, or supposed to be entitled," &c. Upon a prosecution, therefore, for such false personation, there must be some evidence to show that there was some person of the name and character assumed, who was either entitled, or might prima facie, at least, be supposed to be entitled to the wages attempted to be acquired. Brown's case, 2 East, P. C. 1007. Where the prisoner was indicted for personating and falsely assuming the character of Peter M'Cann, a seaman on board the Tremendous, and it appeared in evidence that there had been a seanian of the name of M'Carn on board the vessel, but no one of the name of M'Cann; the prisoner being convicted, the judges held the conviction wrong. They were of opinion that "personating" *must [* 417 ] apply to some person who had belonged to the ship, and that the indictment must charge the personating of some such person. Tannet's case, Russ. and Ry. 351 (a).
It has been held that the offence is the same, though the seaman personated was dead at the time of the offence committed. Martin's case, Russ. and Ry. 324 (b); Cramp's case, Id. 327 (c).
Under the 57 Geo. 3, c. 127, it has been held, that all persons present aiding and abetting a person in personating a seaman, are principals in the offence. Pott's case, Russ. and Ry. 353 (d).
Statutory provision.] By the 7 and 8 Geo. 4, c. 29, s. 53, reciting, that a failure of justice frequently arises from the subtle distinction between larceny and fraud, for remedy thereof it is enacted, "that if any person shall, by any false pretence, obtain from any other person any chattel, money or valuable security, with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to suffer such other punishment by fine or imprisonment, or by both, as the court shall award. Provided always, that if, upon the trial of any person in
(a) 1 Eng. C. C. 351. (b) 1 Ibid. 324. ・ (c) 1 Ibid. 327.
(d) 1 Ibid. 353.