same

had notice thereof, and, by a certain summons in writing, was required personally to be and appear in the said court on the said day of - in the year aforesaid, and then and there take his corporal oath for the due execution of the said office, and to execute the same; which summons, afterwards, to wit, on the day of -, in the year aforesaid, at the parish aforesaid, in the county aforesaid, was delivered to and left with him the said A. B.: nevertheless, the said A. B. not regarding his duty in this behalf, but intending and endeavouring the due execution of the said office totally to neglect and omit, after his being so chosen into the said office, and after such notice and summons as aforesaid, to wit, on the said

day of

-, in the year aforesaid, did obstinately refuse to appear in the said court, and to take upon himself the said office, and to take the oath for the execution thereof, and he the said A. B. voluntarily, unlawfully, obstinately, and contemptuously, hath hitherto refused, and still doth refuse to be sworn into and execute the same office, to wit, at the parish of — aforesaid, in the county aforesaid, to the great hindrance and delay of justice, and against the peace, &c.

209. Indictment against a gaoler for wilfully permitting one under sentence of transportation for felony to escape (b).

That at the general quarter session of the peace holden at W. in and for the county of S. on, &c. before T. C. &c.

(b) This was the form of indictment used in the case of R. v. Burridge, 3 P. Wms. 479. for aiding and assisting a felon under sentence of transportation to escape, the part after the * having been added, to render it applicable to the case of a gaoler; the remainder of the original indictment is given in the next precedent. In the C. C. A. 338. is an indictinent, as for a misdemea nor, against a gaoler for wilfully permitting a prisoner to

escape, who was under sentence of imprisonment for the term of six months, after a conviction of grand larciny; but it seems that it ought to have been laid as a felony. See R. v. Burridge, 3 P. Wms. 497.

An officer who voluntarily suffers an escape, incurs the same degree of guilt, and is liable to the same measure of punishment with the delinquent who has escaped, whether it be treason, felony, or trespass. 1 Hale, 234. 2 Haw,

(the names of the justices,) and others their fellows, justices assigned to keep the peace of our said lord the king in and for the county aforesaid, and also to hear and determine divers felonies, trespasses, and other misdemeanors, committed in the said county, by the oath of, (the grand jury,) gentlemen, good and lawful men of the county aforesaid, impanelled, sworn and charged to inquire for our said lord the king, for the body of the county aforesaid, it was presented that W. P. late of, &c. (setting forth the indictment for grand larciny.) And the jurors aforesaid, now sworn here, upon their oath aforesaid, do further present, that at the same general quarter session of the peace of our said lord the king, held at W. in and for the said county of S. upon, &c. the aforesaid W. P. was duly tried and convicted of the felony above mentioned, charged upon him as aforesaid; and that it was then and there adjudged by the same court, that the said W. P. should be transported for the space of seven years, according to the form of the statutes, as by the record thereof and proceedings remaining amongst the records of the general quarter sessions of the peace of the said county of S. at W. in the county aforesaid, more fully appears. And the jurors aforesaid, now sworn here, upon their said oath, further say, that the aforesaid W. P. being so as aforesaid tried and convicted of the said felony, was then and there, to wit, at the same general quarter session of the peace of our said lord the king, held at W. in and for the county aforesaid, on, &c. committed by the same court to his majesty's gaol at I. in the county aforesaid, upon and in execution of the said judgment for the felony aforesaid. And the jurors aforesaid, now sworn here, upon their oath aforesaid, do fur

c. 19. s. 22. And though it is essential to allege and prove, that the party was in actual custody, and that he was guilty of a specific offence, it is not material at what stage the escape is suffered, whether between the arrest and commitment of the principal, or be fore or after his trial, or before or after his attainder. 2 Haw. c. 19. s. 22. Summ. 114.

Dy. 99. 3 P. Wms. 497. But if the defendant has not been convicted, it is necessary to allege and prove, that he had committed a specific felony, 2 Haw. c. 19. s. 14. Cro. Eliz. 52. Het. 73. Summ. 110.; though it seems to be otherwise, when the indictment is for a negligent escape. Ib.

ther present, that A. B. late of C. in the county aforesaid, yeoman, then being keeper of his majesty's gaol of I. aforesaid, in the county aforesaid, and having the custody of the said W. P. for the cause aforesaid, before then lately committed to the said gaol for the cause aforesaid, on, &c. well knowing that the said W. P. then a prisoner in the said gaol, and in the custody of the said A. B. as aforesaid, had been convicted and committed to the said gaol in execution of and for the felony aforesaid, and did then and there remain so convicted and committed upon and in execution of the said judgment for the said felony as aforesaid, afterwards, to wit, on, &c. with force and arms, at, &c. did voluntarily and feloniously permit and suffer (c) the said W. P. then and there being in the said gaol, in the custody of him the said A. B. and so convicted and committed upon and in execution of the said judgment for the said felony as aforesaid, to escape and go at large, whithersoever he would, out of the said gaol and custody; whereby he the said W. P. did then and there (d) escape from and out of the said gaol, and go at large, to wit, at, &c. against the peace,

&c.

210. Against a private person for breaking gaol, and assisting a felon to escape, who was under sentence of transportation (e).

(As in the preceding pr. to the *.) And the jurors aforesaid, now sworn here, upon their said oath, further present, that T. B. late of B. in the county of S. tailor, being a prisoner in his majesty's gaol at I. aforesaid, in the County aforesaid, on, &c. and well knowing that the aforesaid W. P. then also a prisoner in the said gaol, had been convicted of, and committed to the said gaol in execution of and for the felony aforesaid, and did then and there remain so convicted and committed upon and in execution of the said judgment for the said felony as aforesaid, afterwards, that is to say, on, &c. with force and

(c) Essential, see 2 Haw. c. 19. s. 14.

(d) This is essential, see 2 Haw. c. 19. s. 14. c. 21. s. 3. Keil. 78. B. Escape, 52.

(e) A private person, who having an offender in lawful custody suffers an escape, incurs the same degree of guilt with an officer. 2 Haw. c. 20.

s. 1.

arms, at I. aforesaid, in the county aforesaid, did wilfully and feloniously rescue the said W. P. then and there being in the said gaol so convicted and committed upon and in execution of the said judgment for the said felony as aforesaid, from and out of the said gaol, so that he the said W. P. did make his escape out of the said gaol, and then and there did wilfully and feloniously aid and assist the said W. P. then and there being in the said gaol so convicted and committed upon and in execution of the said judgment for the said felony as aforesaid, in making his escape out of the said gaol; and that the said W. P. by the aid and assistance of him the said T. B. did then there make his escape from and out of the said gaol, and go at large, to wit, at I. aforesaid, in the county aforesaid. And the jurors aforesaid, now sworn here, upon their said oath further say, that the said T. B. being a prisoner in his majesty's said gaol at I. aforesaid, in the county aforesaid, on, &c. afterwards, that is to say, on the same day of in the

year aforesaid, with force and arms, at I. aforesaid, in the county aforesaid, did wilfully and feloniously (f) break the said gaol, and rescue the said W. P. then and there being in the said gaol so convicted and committed upon and in execution of the said judgment for the said felony as aforesaid, from and out of the said gaol, so that he the said W. P. did make his escape out of the said gaol, and then and there did wilfully and feloniously aid and assist the said W. P, then and there be

(f) At common law it was felony to break out of a gaol or prison, whether the cause of commitment was criminal or civil. 1 Hale, 612. 2 Bac. Ab. 635. But by the stat. 1 E. 2. st. 2. it is enacted, "that none from thenceforth that breaketh prison shall have judgment of life or member for breaking of prison only, except the cause, for which he was taken and imprisoned, did require such judgment, if he had been convict thereon, according to the law and custom of the realm;" and, therefore, it is

necessary in an indictment for this offence, to shew that the party was in prison for an offence requiring judgment of life or member. 2 Haw. c. 18. s. 20. To allege generally, quòd felonicè fregit prisonam, is insufficient. Ib. see p. 155, 6. But to break from any lawful custody is punishable as an high misprision by fine and imprisonment, though the offence, by the intervention of the stat. does not amount to felony. 2 Haw. c. 18. s. 30. The same rules apply as to an indictment for an escape. Ib.

ing in the said gaol, so convicted and committed upon and in execution of the said judgment for the said felony as aforesaid, in making his escape out of the said gaol; and that the said W. P. by the aid and assistance of him the said T. B. did then and there make his escape from and out of the said gaol, and go at large, to wit, at I. aforesaid, in the county aforesaid, against the peace, &c.

211. Indictment at common law against a constable for negligently permitting a man to escape that was committed for a rape.

That on, &c. at, &c. one J. S. was brought by one J. B. then being one of the constables of the same parish, before A. C. esq. then and yet being (allege that he was a justice, as in pr. 190,) and the said J. S. then and there was charged by one D. T. spinster, upon the oath of the said D. with having feloniously ravished the said D. against her will; and that the said J. S. then and there was examined before the said A. C. the justice aforesaid, touching the aforesaid offence to him as above charged; upon which the said A. C. so being such justice as aforesaid, did then and there make a certain warrant under his hand and seal, in due form of law, bearing date, &c. directed to the keeper of, &c. commanding him the said keeper, or his deputy, that he should receive into his custody the said J. S. brought before him, and charged upon the oath of the said D. T. with the premises above specified; and the said justice by the aforesaid warrant did command the said keeper of, &c. to safely keep him there until he by due course of law should be discharged; which same warrant, afterwards, to wit, on, &c. at, &c. was delivered to the said J. B. then and there being one of the constables of the same parish as aforesaid, and then and there having the said J. S. in his custody for the cause aforesaid (g),

(g) Every indictment for an escape must shew, that the party was actually in the defendant's custody for some crime, or upon some commitment upon suspicion, and it

is not sufficient to say, that he was in the defendant's custody, AND charged with such a crime; for that is no allegation, that he was in custody upon that charge, 2 Haw. c. 97. s. 14,