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CHAPTER X.

ESCAPE, BREACH OF PRISON, AND RESCUE. a

I. AGAINST OFFICER FOR AN ES

CAPE.
1. DEFINITION, $ 2606.
2. NEGLIGENCE

NEED

NOT BE PROVED, $ 2608. 3. DEPUTY JAILERS AND SERVANTS,

$ 2609. 4. JAILER NEED NOT BE DE JURE, $

2610.

5. INDICTMENT, $ 2611. II. BREACH OF PRISON.

1. WHEN UNDER CRIMINAL PROCESS,

§ 2612.

2. WHEN UNDER CIYIL PROCESS, S

2613. 3. ENOUGH IF PROCESS BE REGULAR,

§ 2614. 4. CERTAINTY OF ANY KIND ENOUGH,

§ 2615.
5. ATTEMPTS, $ 2615 a.
6. ACCESSARIES, $ 2615 b.
7. PRISONER'S UNRESISTED ESCAPE,

§ 2615 c.
8. NECESSITY, $ 2615 d.
III. RESCUE, $ 2615 f.

I. AGAINST OFFICER FOR AN ESCAPE.

1. Definition. $ 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 6 Colby v. Sampson, 5 Mass. 310, follows:

312; Com. v. Farrell, 5 Allen, 130. (633) Escape. Indictment for a con- See R. v. Shuttlework, 22 Up. Can. spiracy to.

Q. B. 372. (921) Voluntary, indictment against c Luckey v. State, 14 Texas, 400; jailer for.

R. v. Shuttleworth, 22 Up. Can. Q. (923) Negligent, indictment against B. 372; State v. Doud, 7 Conn. 384; constable for

R. v. Bootie, 2 Bur. 864. (924) Escape. Indictment against d Weaver v. Commonwealth, 29 prisoner for.

Penn. State R. 445. (1053-4) Attempt to facilitate a third e 2 Hawk. c. 18. party, indictment for.

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. i

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. lc

The indictment must allege the offence with which the def See 1 Hale, 600; Blue v. Com. 4 See Kavanaugh r. State, 41 Alabama, Watts, 215.

399. State v. Halford, 6 Rich. 58. 9

; 2 Hawk. c. 19. See Com. v. Conh 2 Hawk. c. 28, s. 16.

nell, 3 Grat. 587. Ante, $ 653, 2583, i State v. Errickson, 3 Vroom, 421. 2554.

k Connell's case, 3 Gratt. 587.

fendant was charged ; l 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 Proce88. $ 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 Proce88. $ 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 Proce88 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

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. w 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. wl

| Kyle v. State, 10 Alab. 236. u 2 Hawk. P. C. c. 18, s. 16; Com. m R. v. Bootie, 2 Bur. 864.

v. Miller, 2 Ashmead, 61. See PeoR. v. Haswell, R. & R. 458. See ple v. Washburn, 10 Johns. 160. 2 Hawk. P. C. c. 18, s. 16; Com. v. v 2 Hawk. c. 18, s. 7. Briggs, 5 Metc. 559.

w 2 Hawk. c. 18, s. 4; R. v. Bootie, $ 2 Hawk. P. C. c. 28, s. 16.

2 Bur. 864. Ante, § 2606. 1 R. v. Allan, C. & M. 295.

w1 R. v. Waters, 12 Cox C. C. 390.

801

VOL. 11. - - 51

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.2 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. 6

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

x 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.
c See ante, $ 90 a.

cannot be considered an offence to break through restraint when no restraint is imposed. Undoubtedly it is a high phase of Socratic heroism for a man condemned to death or imprisonment to walk back, when let loose, to be executed or imprisoned. But the law does not undertake to establish by indictment Socratic heroism. It would not be good for society that the natural instinct for self-preservation should be made to give way to so romantic a sentiment as is here invoked ; and it is a logical contradiction to say that the scaffold and the cell are to be used to prove that the scaffold and the cell are of no use. If men voluntarily submit to punishment, then compulsory punishment is a wrong. Besides this, to hold that a prisoner is under bonds as much when he is let loose as well as when he is locked up, is to make it a matter of indifference to the jailer whether or no he keeps vigilant guard, and to destroy the difference between jail and no jail. Following these views, the conclusion has been reached that an unresisted escape is not per se an indictable offence;d and this view has been adopted by all modern German codes. The Anglo-American decisions on this point may be too firmly settled to be now shaken; but considerations such as those which have been mentioned may not be without their use in adjusting the punishment on convictions for unresisted escapes.

III. RESCUE. § 2615 f. Rescue is a violent delivery of a prisoner from lawful custody ; and is committed by one who would be a principal in the second degree in a prisoner's breach of prison, and who was present actually or constructively assisting by violence in such prison breach. It may also be consummated by wresting a prisoner violently from custody, even though the prisoner should take no part in the violence. e Rescue, like prison breach, is either felony or misdemeanor, as the crime charged on the prisoner rescued is felony or misdemeanor.f But there must be knowledge by the rescuer that the person rescued was under some arrest. g

An unsuccessful rescue may be indicted for an attempt. h d See Berner, Lehrbuch, p. 548; f 2 Hawk. P. C. c. 18, § 10. Henke Handbuch, III. & 179; Koch, g State v. Hilton, 26 Mo. 199. $ 618.

h See post, $ 2692; State v. Mure State v. Cuthbert, T. Charlton, 13. ray, 15 Me. 100.

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