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Where a person is in custody on a charge of treason or felony, and effects his escape by force, the offence is a felony at common law; where he is in custody on a minor charge, it is a misdemeanor. 1 Russell, 378; see statute 1 Ed. 2, st. 2, post.

Upon a prosecution for prison breach, the prosecutor must prove, 1, the nature of the offence for which the prisoner was imprisoned; 2, the imprisonment and the nature of the prison; and 3, the breaking of the prison.

Proof of the nature of the offence for which the prisoner was imprisoned.] The statute de frangentibus prisonam, 1 Ed. 2, st. 2, enacts, "that none thenceforth that breaks prison shall have judgment of life or member for breaking of prison only, except the cause for which he was taken or imprisoned did require such a judgment, if he had been convicted thereupon according to the law and custom of the realm." If the offence therefore for which the party is arrested does not require judgment of life or member, it is not a felony. 1 Russell, 379. And though the offence

for which the party is committed is supposed in the mittimus to be of such a nature as requires a capital judgment, yet if in the event it be found of an inferior nature, it seems difficult to maintain that the breaking can be a felony. Ibid. It seems that the stating the offence in the mittimus to be one of lower degree than felony, will not prevent the breaking from being felony, if in truth the original offence was such. Hawk. P. C. b. 2, c. 18, s. 15; 1 Russell, 379. A prisoner on a charge of high treason, breaking prison, is only guilty of a felony. Hawk. P. C. b. 2, c. 18, s. 15. It is immaterial whether the party breaking prison has been tried or not. Id. s. 16.

Where the prisoner has been convicted, the certificate of the clerk of *assize, &c. with proof of identity, will be proof of the nature [ *795 ] and fact of the conviction and of the species and period of confinement to which the party was sentenced. 4 Geo. 4, c. 64, s. 44, ante, p. 412.

Whenever a party is in lawful custody on a charge of felony, whether he has been taken upon a capias, or committed on a mittimus, he is within the statute, however innocent he may be, or however groundless may be the prosecution against him; for he is bound to submit to his imprisonment, until he is discharged by due course of law. 2 Inst. 590; 1 Hale, 610; 2 Hawk. c. 18, s. 5.

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A party may therefore be convicted of the felony for breaking prison before he is convicted of the felony for which he was imprisoned; the proceeding in this instance differing from cases of escape and rescue. Inst. 592; 1 Hale, 611; 2 Hawk. c. 18, s. 18.

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But although it is immaterial whether or not the prisoner has been convicted of the offence, which he has been charged with, yet if he has been tried and acquitted, and afterwards breaks prison, he will not be subject to the punishment of prison breach. And even if the indictment for the breaking of the prison be before the acquittal, and he is afterwards acquitted of the principal felony, he may plead that acquittal in bar of the indictment for felony for breach of prison. 1 Hale, P. C. 611, 612.

Proof of the imprisonment and the nature of the prison.] The imprisonment, in order to render the party guilty of prison breaking, must be a lawful imprisonment; actual imprisonment will not be sufficient; it must be prima facie justifiable (1). Therefore where a felony has been committed, and the prisoner is apprehended for it, without cause of suspicion, and the mittimus is informal, and he breaks prison, this will not be felony, though it would be otherwise if there were such cause of suspicion as would form a justification for his arrest. Hawk. P. C. b. 2, c. 18, s. 7, 15; 1 Hale, P. C. 610. So if no felony has in fact been committed, and the party is not indicted, no mittimus will make him guilty within the statute, his imprisonment being unjustifiable. Id. But if he be taken upon a capias awarded on an indictment against him, it is immaterial whether he is guilty or innocent, and whether any crime has or has not in fact been committed, for the accusation being on record, makes his imprisonment lawful, though the prosecution be groundless. Hawk. P. C. b. 2, c. 18, s. 5, 6.

The statute extends to a prison in law, as well as to a prison in deed. 2 Inst. 589. An imprisonment in the stocks, or in the house of him who 1 Hale, P. C. makes the arrest, or in the house of another, is sufficient. 655. So if a party arrested, violently rescues himself from the hands of the party arresting him. Ibid. The imprisonment intended is nothing more than a restraint of liberty. Hawk. P. C. b. 2, c. 18, s. 4.

It is sufficient if the gaoler has a notification of the offence for which [ *796] the prisoner is committed, and the prisoner of the offence for *which he was arrested, and commonly, says Lord Hale, he knows his own guilt, 1 Hale, P. C. 610. if he is guilty, without much notification.

Proof of the breaking of the prison.] An actual breaking of the prison with force, and not merely a constructive breaking must be proved. If a gaoler sets open the prison doors, and the prisoner escapes, this is no felony in the latter. 1 Hale, P. C. 611. And if the prison be fired, and the prisoner escapes to save his life, this excuses the felony, unless the prisoner himself set fire to the prison. Id. In these cases the breaking amounts to a misdemeanor only.

The breaking must be by the prisoner himself, or by his procurement, for if other persons without his privity or consent, break the prison, and

(1) State v. Leach, 7 Conn. 752. Where the sole object of a prisoner illegally confined, is to liberate himself, he is not liable, though other real criminals, by means of his prison-breach escape. Ibid.

made, he cannot be indicted for the 2 Hawk. c. 18, s. 10.

he escape through the breach so breaking, but only for the escape. No breach of prison will amount to felony, unless the prisoner actually escape. 2 Hawk. c. 18, s. 12; 2 Inst. 590; 1 Hale, 611.

A prisoner convicted of felony made his escape over the walls of the prison, in accomplishing which he threw down some bricks from the top of the wall, which had been placed there loose, without mortar, in the form of pigeon holes, for the purpose of preventing escapes. Being convicted of prison breaking, a doubt arose whether there was such force as to constitute that offence, but the judges were unanimously of opinion that the conviction was right. Haswell's case, Russ. and Ry. 458.

Punishment.] Although to break prison and escape, when lawfully committed for any treason or felony, still remains felony as at common law; the breaking prison when lawfully confined upon any other inferior charge, is punishable only as a high misdemeanor by fine and imprisonment. 4 Bl. Com. 130; 2 Hawk. c. 18, s. 21.

By the 7 and 8 Geo. 4, c. 28, s. 8, "every person convicted of any felony not punishable with death, shall be punished in the manner prescribed by the statute or statutes especially relating to such felony; and that every person convicted of any felony for which no punishment hath been, or hereafter may be especially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."

By s. 8, in cases of imprisonment, the court may award hard labor and solitary confinement; but the latter is not to exceed one month at a time, and three months in any one year; see ante, p. 348.

Conveying tools, &c. to prisoners to assist in escape.] By the 4 Geo. 4, c. 64, s. 43, "if any person shall convey or cause to be conveyed into any prison to which that act shall extend, any mask, vizor, or other *disguise, or any instrument or arms proper to facilitate the es- [ *797 ] cape 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 fourteen years."

As to aiding escapes from prison, see also the 16 Geo. 2, c. 31.

Special enactments.] The offence of prison breach is made the subject of special provisions in various statutes. Thus by the 59 Geo. 3, c. 11, prison breaking from the Penitentiary at Milbank, was made punishable by additional imprisonment for three years, and in case of a second

offence, with death; but by the 7 Wm. 4 and 1 Vict. c. 91, the punishment of death is abolished, and the party is liable to be transported for life, or for not less than fifteen years, or to be imprisoned for any term not exceeding three years.

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Statutes respecting.] Rape is defined by Lord Hale, to be the carnal knowledge of any woman, above the age of ten years, against her will; and of a woman child under the age of ten years, with or against her will (1). 1 Hale, P. C. 628; 3 Inst. 90; Hawk. P. C. b. 1, c. 41, s. 2. The offence has been the subject of various statutory provisions, (Westm. 1, c. 13; Westm. 2, c. 34; 18 Eliz. c. 7, s. 1.)

[ *798] *Now by the 9 Geo. 4, c. 31, s. 16, "every person convicted of the crime of rape shall suffer death as a felon."

This sentence may be recorded; ante, p. 224.

Proof with regard to the person committing the offence.] An infant under the age of fourteen years is presumed by law unable to commit a rape, but he may be a principal in the second degree, as aiding and assisting, if it appear by the circumstances of the case that he had a mischievous intent. 1 Hale, P. C. 630.

So Vaughan, B., held that a boy under fourteen could not be convicted of an assault with intent to commit a rape. Elderhaw's case, 3 C. and P. 396 (a). So Gaselee, J., after consulting Lord Abinger, C. B., ruled that the presumption of law, that a boy under fourteen years of age is unable to commit a rape, is not affected by the 9 Geo. 4, c. 31, ss. 16 and 17. Groombridge's case, 7 C. and P. 582 (b). So where a lad under fourteen was charged with an assault to commit a rape, Patteson, J., said, "I think that the prisoner could not in point of law be guilty of the offence of assault with intent to commit a rape, if he was at the time of the offence under the age of fourteen. And I think also that if he was under that age, no evidence is admissible to show that in point of fact he could commit the offence of rape." Phillips' case, 8 C. and P. 736 (c).

(1) People v. Stamford, 3 Wheeler's C. C. 152. People v. Croucher, Id. 42.
(a) Eng. Com. L. Rep. xiv. 367. (b) Id. xxxii. 641. (c) Id. xxxviii. 610.

Although a husband cannot be guilty of a rape upon his own wife, yet he may be guilty as a principal in assisting another person to commit a rape upon her. Lord Audley's case, 1 St. Tr. 387, fo. ed. 1 Hale, P. C. 629. The wife in this case is a competent witness against her hus

band. Id.

Proof with regard to the person upon whom the offence is committed.] It must appear that the offence was committed against the consent, of the woman; but it is no excuse that she yielded at last to the violence, if her consent was forced from her by fear of death, or by duress. Nor is it any excuse, that she consented after the fact, or that she was a common strumpet; for she is still under the protection of the law, and may not be forced; or that she was first taken with her own consent, if she was afterwards forced against her will; or that she was a concubine to the ravisher, for a woman may forsake her unlawful course of life, and the law will not presume her incapable of amendment. All these circumstances, however,

are material, to be left to the jury in favor of the accused, more especially in doubtful cases, and where the woman's testimony is not corroborated by other evidence. 1 East, P. C. 444; 1 Hale, 628, 631; Hawk. P. C. b., 1, c. 41, s. 2.

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The opinion, that, where the woman conceived, it could not be rape, because she must have consented, is now completely exploded. 1 East, P. C. 445; 1 Russell, 557.

Whether carnal knowledge of a woman, who, at the time of the commission of the offence, supposed the man to be her husband, is a rape, came in question in the following case. The prisoner was indicted for a burglary, with intent to commit a rape. It appeared that the [*799 ] prisoner got into the woman's bed, as if he had been her husband, and was in the act of copulation, when she made the discovery; upon which, and before completion, he desisted. The jury found that he had entered the house with intent to pass for her husband, and to have connection with her, but not with the intention of forcing her, if she made the discovery. The prisoner being convicted, upon a case reserved, four of the judges thought that the having carnal knowledge of a woman, whilst she was under the belief of its being her husband, would be a rape; but the other eight judges thought that it would not; several of the eight judges intimated that if the case should occur again, they would advise the jury to find a special verdict (1). Jackson's case, Russ. and Ry. 487 (a)..

So where it appeared from the evidence of the prosecutrix, that the prisoner had got into her bed while she was asleep, and that she had allowed him to have connection with her, believing him to be her husband, and that she did not discover who he was till after the connection was over; Alderson, B., held that the charge of rape could not be maintained; but the prisoner was found guilty of an assault under the 7 Wm. 4 and 1 Vict. c. 85, s. 11, ante, p. 264. The learned Baron observed, "In an assault of this nature there need not be resistance, the fraud is enough. If resistance is prevented by the fraud of the man who pretends to be the husband, that is sufficient." Williams's case, SC. and P. 286 (b). Also

(1) It seems, that it is as much a rape when effected thus by stratagem, as by force. People v. Barton, 1 Wheeler's C. C. 378, 381, n. Comm. v. Fields, 4 Leigh, 648.

(a) 1 Eng. C. C. 487. (b) Eng. Com. L. Rep. xxxiv. 392.

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