verdict on an indictment for composing, writing, printing, and publishing a libel, that the defendant is "guilty of publishing as alleged in the indictment, and not guilty as to the residue," is equivalent to a general verdict of guilty; u since the allegations" compose, "" write," &c., can be rejected as surplusage. u Com. v. Morgan, 107 Mass. 199. 798 CHAPTER X. ESCAPE, BREACH OF PRISON, AND RESCUE. a § 2606. ESCAPE is the departure of a prisoner from custody; and for such departure, no matter how slight, the officer in charge is at common law indictable. b The custody may be that of a prison, or a chamber, or even that of constructive tactual arrest in the open streets.c § 2607. It is a felony at common law for the keeper of a prison voluntarily to suffer a prisoner charged with felony to escape; d and a misdemeanor to suffer a person charged with misdemeanor to escape. e a See Wharton's Precedents, as follows: (633) Escape. Indictment for a con b Colby v. Sampson, 5 Mass. 310, 312; Com. v. Farrell, 5 Allen, 130. See R. v. Shuttlework, 22 Up. Can. Q. B. 372. c Luckey v. State, 14 Texas, 400; R. v. Shuttleworth, 22 Up. Can. Q. (923) Negligent, indictment against B. 372; State v. Doud, 7 Conn. 384; constable for. (924) Escape. Indictment against prisoner for. (1053-4) Attempt to facilitate a third party, indictment for. R. v. Bootie, 2 Bur. 864. d Weaver v. Commonwealth, 29 Penn. State R. 445. e 2 Hawk. c. 18. 2. Negligence need not be proved by Prosecution. § 2608. It is not necessary to prove negligence in the defendant, the law implies it;f but if the escape were not in fact negligent; if the prisoner by force rescued himself, or was rescued by others, and the officer made fresh pursuit after him, but without effect, and took throughout every precaution in his power; all this must be shown on the part of the defendant. And so severe is the policy of the law in this respect, that it is held that nothing but the act of God, or of irresistible adverse force, will be an excuse. g It is enough also to prove that the warrant or authority on which the prisoner was convicted was legal; it is not requisite for the prosecution to prove that the person actually committed the offence with which he was charged. h 3. Deputy Jailers and Servants. § 2609. The deputies of a jailer are charged with the same high responsibilities as are imposed upon the jailer himself. It is otherwise, however, with his servants, who are not deputies, and who are only responsible for negligence in their particular spheres, or for connivance. ¿ 4. Jailer need not be de jure. § 2610. But a de facto jailer is responsible for an escape; nor does the question of the legality of the jailer's appointment at all affect the issue.j 5. Indictment. § 2611. An indictment against a jailer for permitting a prisoner in his custody to have an instrument in his room with which he might break the jail and escape, and for failing carefully to examine, at short intervals, the condition of the jail, and what the prisoner was engaged in at the said jail, in consequence of which the prisoner escaped, does not state an indictable offence. k The indictment must allege the offence with which the def See 1 Hale, 600; Blue v. Com. 4 See Kavanaugh v. 399. j 2 Hawk. c. 19. nell, 3 Grat. 587. h 2 Hawk. c. 28, s. 16. i State v. Errickson, 3 Vroom, 421. 2554. k Connell's case, State, 41 Alabama, See Com. v. ConAnte, § 653, 2533, Gratt. 587. fendant was charged; though when there is no warrant, but simply a verbal arrest, the offence may be set out in popular terms.m II. BREACH OF PRISON. 1. When under Criminal Process. § 2612. Prison breach is the forcible departure from custody by a person voluntarily confined; and by the English common law the offence is a felony if the commitment was for felony, or a misdemeanor if the commitment was for a misdemeanor. r 2. When under Civil Process. § 2613. Where the defendant is confined simply on civil process, there are intimations that the old common law offence of breach of prison is not reached. 8 Certainly it is not, so far as the question of felony is concerned; but it is equally clear that it is a misdemeanor at common law to escape from any lawful imprisonment. t 3. Enough if Process be regular. § 2614. It is enough to sustain the prosecution if the process were regular. The question of the defendant's guilt or innocence is not relevant to the issue. u At the same time, if no felony were committed at all, and there was no prior legal arrest of the prisoner, a mere commitment would be void, and the breaking innocent. v w 4. Custody of any kind enough. § 2615. The breaking need not be from a public prison. If there be force, it is a prison breach to escape from an officer in the streets. The dismissal of a case by a magistrate is not such a discharge of a prisoner as will justify him in an escape from the lock-up to which, after the dismissal, he was remanded by the magistrate. w 5. Attempts. § 2615 a. When the breaking-out is not accomplished the defendant may be indicted for an attempt. x 6. Accessaries. § 2615 6. Assistance to one breaking prison, to aid him in his undertaking, is governed by the rules applying to principals and accessaries. If the prison breach is felony, a person supplying means by which it is effected, or waiting to carry off the prisoner after his escape, is accessary before or after the fact as the case may be. If the prison breach is a misdemeanor, then a person so assisting is a principal in the misdemeanor. y 7. Prisoner's unresisted Escape. § 2615 c. A distinction is taken by the old writers between breach of prison and escape. To breach of prison some force is necessary; some breaking of the continuity of the prison,some tearing away from custody. z But if these conditions do not exist, e. g. if the doors be left open, and the prisoner walks without interruption out, the indictment must be for an escape, and is under no circumstances more than a misdemeanor. a A prisoner's voluntary escape from bounds out of prison assigned him by the jailer is a voluntary escape. b 8. Necessity. § 2615 d. It can scarcely be added that for the technical offence of prison breach, necessity (e. g. a conflagration in the prison) is a defence. c § 2615 e. Mitigated punishment in cases of unresisted escape. Whether, in a humane jurisprudence, the unresisted escape of prisoners from custody is a punishable offence, may well be doubted. The later Roman common law holds that it is not. The law of freedom, so argue eminent jurists, is natural; the instinct for freedom irrepressible; if the law determines to restrain this freedom, it must do so by adequate means; and it ≈ People v. Rose, 12 Johns. 339. See post, § 2692. y People v. Tompkins, 9 Johns. 70. z See R. v. Haswell, R. & R. 458. a 2 Hawk. c. 18, s. 19; R. v. Allan. 1 C. & M. 295. b Riley v. State, 16 Conn. 47. |