Hawkins, as approved by Sir W. Russell: "There can be no doubt but that wherever an officer who hath the custody of a prisoner, charged with, and guilty of a capital offence, doth knowingly give him his liberty with an intent to save him either from his trial or execution, he is guilty of a voluntary escape, and thereby involved in the guilt of the same crime of which the prisoner was guilty and stood charged with."

It is a misdemeanor at common law for an officer having lawful charge of a prisoner, negligently to permit the temporary departure of such prisoner from his custody, no matter how slight may be such departure. The custody may be that of a prison, or a chamber, or even that of constructive tactual arrest in the open streets. And any undue liberty wrongfully allowed to a prisoner, which he uses to effect his escape, makes the custodian giving the liberty indictable at common law.

If the warrant of commitment be regular, and issue from a tribunal having jurisdiction, the question of the prisoner's guilt, or of the regularity of prior procedure, is irrelevant. The only way either of these questions can be raised is by application to the tribunal issuing the process, or to an appellate tribunal."

No indictment lies for an escape when the imprisonment is on its face void and illegal."

§ 1668. Where the offence charged is a negligent escape, it is not necessary to prove negligence in the defendant, as the law implies

1 Hawk. P. C. ut supra; 1 Russ. on Cr. 583, approved by the Supreme Court of New Jersey, in 1884, in Meehan v. State (6 Crim. Law Mag. 202). To constitute this offence, however, the escape must be voluntary and intentional. Meehan v. State, ut supra.

Colby v. Sampson, 5 Mass. 310, 312; Com. v. Farrell, 5 Allen, 130; State v. Addcock, 65 Mo. 590. See R. v. Shuttleworth, 22 Up. Can. (Q. B.) 372; Meehan v. State, ut sup.; State v. Martin, 32 Ark. 124.

Detention on mesne process is impris onment under the statute. Com. v. Barker, 133 Mass. 399.

Negligence need not be

proved by

prosecu

it; and if it be alleged in defence that 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, the burden of making out this defence is on the defendant. And tion. so severe is the policy of the law in this respect, that nothing but the act of God, or of irresistible adverse force, is held an excuse.2 § 1669. The deputies of a jailer are charged with the same high responsibilities as are imposed on the jailer himself. It is otherwise, however, with his servants, who are not Deputy deputies, and who are only responsible for negligence in their particular spheres, or for connivance. But the custody must have been lawful.

jailers are

liable as

jailers.

Jailer need

§ 1670. A de facto jailer is responsible for an escape; nor does the question of the legality of the jailer's ap- not be de pointment at all affect the issue."

jure.

Indictment

§ 1671. The indictment must allege the offence with which the defendant was charged, and the character of the warrant; though when there is no warrant, but simply a must specverbal arrest, the offence may be set out in popular terms.8 ify offence. Under the statutes making escape a substantive offence the indictment need not allege scienter on part of the officer permitting the escape.9

1 See 1 Hale, 600; Blue v. Com., 4 Watts, 215; Com. v. Connell, 3 Grat. 587.

State v. Halford, 6 Rich. 58; Shattuck v. State, 51 Miss. 575.

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. 2 Hawk. c. 28, s. 16.

State v. Errickson, 3 Vroom (32 N. J. L.), 421. See Kavanaugh v. State, 41 Ala. 399.

See State v. Beebe, 13 Kans. 589; Wilckens v. Willett, 4 Abb. Ap. Dec. 596.

1617; Whart. Cr. Ev. §§ 164, 833. As to de facto officers, see supra, § 652.

6 Kyle v. State, 10 Ala. 236; and so as to those assisting the escape. State v. Jones, 78 N. C. 420.

7 State v. Hollon, 22 Kan. 580. 8 R. v. Bootie, 2 Burr. 864. 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 to carefully examine, at short intervals, the condition of the jail, and the occupation of the prisoner at the said jail, in consequence of which the prisoner escaped, does not state an indictable offence. Com. v. Connell, 3 Grat. 587. Sed quaere. 9 Wilson v. State, 61 Ala. 151. 481

Prison

II. BREACH OF PRISON.

§ 1672. Prison breach is the breaking out of the place of lawful confinement, by a person involuntarily confined, against the will of his custodian; and by the English common law the offence is a felony if the commitment were for felony, or a misdemeanor, if the commitment were for a misdemeanor. Force is not necessary to the constitution

breach is a forcible departure from cus

tody.

of the offence.3

§ 1673. 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. Certainly it is not, so

Offence extends to escape from civil process.

far as the question of felony is concerned; but it is equally clear that it is misdemeanor at common law to escape from any lawful imprisonment, whether on civil or criminal process."

Enough if process be

§ 1674. It is enough to sustain the prosecution if the process were regular, and the imprisonment prima facie authoritative ;* though mere technical informalities in the process will be regular. no defence. The question of the defendant's guilt or innocence is not relevant to the issue. At the same time, if no crime were committed at all, and there were no prior legal arrest of the prisoner, a mere commitment would be void, and the breaking innocent. But the dismissal of a case by the magistrate is not such a discharge of a prisoner as will justify him in an escape from the lock-up, to which he was remanded by the magistrate.10 And it has

State v. Beebe, 13 Kans. 589.

R. v. Haswell, R. & R. 458; R. v. Martin, Ibid. 196. See 2 Hawk. P. C. c. 18, s. 16; State v. Murray, 15 Me. 100; Com. v. Briggs, 5 Met. 559; People v. Tompkins, 9 Johns. 70; Com. v. Miller, 2 Ashm. 61; Kyle v. State, 10 Ala. 236.

3 State v. Davis, 14 Nev. 439. See R. v. Payne, L. R. 1 C. C. 27; 10 Cox C. C. 232; Com. v. Mitchell, 3 Bush, 39; Barthelow v. State, 26 Tex. 175. Supra, § 1580.

42 Hawk. P. C. c. 28, s. 16.

6 As to arrest, see Whart. Cr. Pl. & Pr. §§ 1-12. Supra, § 652.

7 Com. v. Morihan, 4 Allen, 588. 82 Hawk. P. C. c. 18, s. 16; Com. v. Miller, 2 Ashm. 61; State v. Bates, 28 Iowa, 96. See People v. Washburn, 10 Johns. 160.

92 Hawk. c. 18, s. 7; supra, §§ 647

-52.

10 Supra, § 1667.

In R. v. Waters, 12 Cox C. C. 390, the defendant was given into custody without a warrant on a charge of felony. He was conveyed before a magistrate,

5 R. v. Allan. C. & M. 295. See State who remanded him to custody without .v. Murray, 15 Me. 100.

any evidence on oath. The defendant

been held in Kansas that it is no defence to an indictment for this offence that the prisoner was arrested without legal warrant, and was afterwards acquitted.1

§ 1675. The breaking need not be from a public prison. Custody of If there be force, it is a prison breach to escape from an any kind officer in the streets.2

§ 1676. When the breaking out is not accomplished the defendant may be indicted for an attempt. But a breach is effected by throwing down, when escaping, a loose brick on top of a prison wall.◄

§ 1677. Assistance to one breaking prison, or escaping from custody, in his undertaking, is governed by the rules applying to principals and accessaries. If the prison breach be a felony, a person supplying the means to effect it, 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 be a misdemeanor, then a person so assisting is a principal in the misdemeanor. The indictment, if the offence be charged

as an accessaryship, must aver the principal's offence.1 And a person knowingly harboring the fugitive after his escape, may be guilty as an accessary after the fact. But when the offence is charged as a substantive misdemeanor, then it ought to be enough to aver that the person aided was at the time duly under arrest or imprisonment. And a charge of this character can be sustained by proof of aid furnished the prisoner such as would be likely to facilitate his escape. Material assistance given by one prisoner to another falls under the same head, when such assistance has a natural tendency to facilitate escape. But mere communications advising an escape, without supplying means, do not constitute the offence.5

Voluntary escape is indictable.

§ 1678. 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." But if this element be not present, e. g., if the doors be left open and the prisoner walk without interruption out, the indictment must be for an escape, and is under no circumstances more than a misdemeanor." Nor is a confinement within prison walls an essential condition of the offence. A prisoner's voluntary departure from bounds out of prison assigned him by the jailor is a "voluntary escape." He is under arrest, if he is ordered to be subject to arrest.9

Supra, § 1671.

2 Supra, § 241. See Com. v. Miller, 2 Ashm. 61; and infra, § 1680.

3 R. v. Paine, L. R. 1 C. C. 27; R. v. Allan, 1 C. & M. 295; Peeler v. State, 3 Tex. Ap. 533; Mason v. State, 7 Ibid. 623.

4 Luke v. State, 49 Ala. 30.

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 cannot be considered an offence to break

6 Hughes v. State, 1 Engl. (Ark.) through restraint when no restraint is 132. imposed. Undoubtedly it is a high

See R. v. Haswell, R. & R. 458; phase of Socratic heroism for a man R. v. Kelly, 1 Cr. & Dix, 203. condemned to death or imprisonment

72 Hawk. c. 18, s. 19; R. v. Allan, to walk back, when let loose, to be exC. & M. 295. ecuted or imprisoned. But the law Riley v. State, 16 Conn. 47. See does not undertake to establish by inGreen v. Hern, 2 Penn. R. 167.

9 Com. v. Sheriff, 1 Grant, 187. Whether, in a humane jurisprudence, the unresisted escape of prisoners from custody is a punishable offence

dictment 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