Sidebilder
PDF
ePub

the indictment, it was quite sufficient. (e) It was also held that such an indictment need not allege the date of the order,(ƒ) as that was immaterial.

An indictment alleged that an appeal was made by the defendants against a rate to the sessions, who dismissed the appeal, and ordered the defendants "immediately upon service of the said order, or a true copy thereof," to pay the churchwardens and overseers a sum for costs of the appeal, and that a true copy of the said order was afterwards personally served upon each of the defendants, and each of them had notice of the said order. Nevertheless, the defendants wilfully neglected and refused to pay. Upon the trial the Clerk of the Peace produced the minutes of the sessions, and read the order, which ordered the defendants "immediately upon service of this order, or a true copy thereof," to pay the costs. The Clerk of the Peace stated that "the costs were not taxed during the actual sitting of the sessions, but between the time of the Court adjourning and its meeting. I reported to the magistrates what I thought fit and proper costs; and the Court adopted it. I made a verbal statement, which the Court adopted. I gave both parties an opportunity of attending. The defendants did not attend. I wrote a letter to their solicitor. The appeal was dismissed for want of due notice." The defendants' attorney was the *578] person attending the appeal, and was present *when the order was made. There were four or five of the magistrates at the adjournment who were at the original sessions. A witness proved that he served each defendant with a paper, which he told them was a true copy of the order, as in fact it was, and at the time of service read to each the contents of a parchment writing, which was also a true copy of the order, and was produced on the trial. It was objected, first, that as notice to produce the copies served had not been given, evidence could not be given that the copy served was a true copy; but it was held that a notice to produce the paper served would have been notice to produce a notice, which is never required; secondly, that an order to pay upon service of the said order, or a true copy thereof," was bad on the face of it; but it was held to be perfectly sufficient-that an order of sessions in that form was good. And the service was also good, whether the book of the sessions or the parchment was the order; for if the book was the original, it could not be shown at the time of the service, and if the parchment was the original, its contents were read over.(g) And, lastly, that the adjourned sessions had no jurisdiction to fix the amount of costs; but the Court held that it was unnecessary to decide that point. The magistrates must be taken to have ordered in the first instance, in the presence of all the parties, that the defendants should pay such costs as the officer might find to be due; and the result of the evidence being that both parties had an opportunity of attending the taxation, and no objection being made when the amount was stated in Court, a state of things took place which amounted to a consent, and therefore the order was valid. (h)

[ocr errors]

The 11 Geo. 2, c. 19, s. 16, enables two justices to put a landlord in possession of premises in any case where one year's rent is in arrear, and the tenant deserts the premises and leaves them uncultivated or unoccupied so as no sufficient distress can be had; and sec. 17 empowers the next justice or justices of assize, on the appeal of the tenant to award restitution to the tenant. Upon an indictment for disobeying the order of the justices of assize to restore possession to the tenant, it seems sufficient to put in the record made up by the justices of the peace, in which, after reciting the complaint and other proceedings, they declare that they put the landlord in possession, and it seems unnecessary to prove the complaint of the landlord.(i)

(e) Ibid.

(f) Ibid.

(g) Per Coleridge, J., "An order of the quarter sessions is not like an order of justices out of sessions. It is the judgment of the Court, and that cannot be carried about: it is sufficient if a copy be shown."

(h) Reg. v. Mortlock, 7 Q. B. 459 (53 E. E. L. R.).

(i) Reg. v. Sewell, 8 Q. B. 161 (55 E. C. L. R.). The very ground of the appeal might be that the justices of the peace had acted without any complaint, and therefore the proof of the complaint could not be necessary. The Court held in this case that the orders of the justices of assize must be made by them as individual justices, and not as a Court, and therefore a certificate of such an order, signed by the deputy clerk of assize in the same way as an order of Court, is not sufficient. It seems also that the order should be

Upon the trial of an indictment for not paying a sum of money pursuant to an order of sessions made on an appeal by the defendant against a certificate of two justices, for stopping up, diverting, and turning a part of a public footway, the record of the order of sessions, together with proof of the service of a copy of the order *upon the defendant, and a demand of the sum ordered thereby to be [*579 paid, to which the defendant only answered that he did not cwe anything, is sufficient evidence to go to the jury, and it is not necessary to prove aliunde the existence of the certificate or the fact of the appeal. An order of sessions made upon such an appeal need not show the time at which the certificate of the justices was lodged with the clerk of the peace; for the sessions have no duty to inquire into that fact, unless the objection is raised before them.(k)

On the trial of an indictment against the stewards of a friendly society for disobeying an order of justices, which recites that the rules of such society had been enrolled, such recital is not evidence of that fact, and it must be proved by other means, in order to show that the justices had jurisdiction to make the order under the 33 Geo. 3, c. 54, s. 2.(7) Upon the trial of such an indictment the Court will not enter into the merits of the original case, nor will they hear objections to the order which do not appear upon the face of it. (m) Upon the trial, therefore, of such an indictment it is no defence that the party ordered to be readmitted was ineligible to be a member of the society, as that was matter of defence before the justices. (n) So, on a motion to arrest the judgment upon an indictment for disobeying an order of justices for the payment of a fine upon a conviction, the Court of King's Bench refused to hear any objections to the conviction which did not appear upon the face of it.(o) But if it appear on the face of the order that the justices had no jurisdiction to make it, the defendant should be acquitted, without being left to bring a writ of error, though the want of jurisdiction be apparent on the face of the indictment. Where, therefore, certain justices, acting under the Building Act (14 Geo. 3, c. 78) had made an order that a building should be removed, as an encroachment on a highway, but the building was not stated in the order to extend beyond the general line of the houses so as to be contrary to the provisions of the Act; it was held, upon an indictment for disobeying such order, that the defendant should be acquitted, although the objection appeared upon the record.(p)

Where an indictment stated that M. had been expelled from a friendly society, and had been deprived of certain relief from it, to which he was entitled, and that, finding himself aggrieved thereby, he made complaint thereof to two justices, and deposed before them to the truth of the said complaint, and that the justices ordered that he should be continued a member of the society, and that the stewards of the society unlawfully refused so to continue him as a member of the society, and the order when produced, recited only a complaint that the stewards had refused to pay him the relief, but contained an order to pay the relief, and also that he should be continued a member of the society; it was held that the defendants were entitled to be acquitted; *first, because the allegations of the indict[*580 ment were not proved, as the defendants were only summoned to answer one ground of complaint, and not two; and, secondly, because the adjudication to continue M. as a member of the society was bad, for the 33 Geo. 3, c. 54, s. 15, confines the jurisdiction of justices to the subject matter of the complaint.(9)

signed by the justices of assize, and that they alone, and none of the other commissioners, have jurisdiction to make such an order.

(k) Reg. v. Thornton, 2 Cox C. C. 493.

(1) Rex v. Gilkes, 8 B. & C. 439 (15 E. C. L. R.).

(m) Rex v. Mitton, 3 Esp. R. 200; s. c., Cald. 536.

(n) Rex v. Gilkes, 3 C. & P. 52 (14 E. C. L. R.), Abbott, C. J.

(o) Rex v. Mitton, 3 Esp. R. 200, in the note.

(P) Rex v. Hollis, 2 Str. N. P. C. 536 (3 E. C. L. R.), Abbott, C. J. (2) Rex v. Soper, 3 B. & C. 857 (10 E. C. L. R.).

*581]

*CHAPTER THE THIRTY-SECOND.

OF ESCAPES.

AN escape is where one who is arrested gains his liberty before he is delivered by the course of the law. (a) And it may be by the party himself; either without force before he is put in hold, or with force after he is restrained of his liberty; or it may be by others; and this also either without force, by their permission or negligence, or with force, by the rescuing of the party from custody. Where the liberation of the party is effected either by himself or others, without force, it is more properly called an escape; where it is effected by the party himself with force, it is called prison-breaking; and where it is effected by others, with force, it is commonly called a rescue. (b) In the present chapter it is proposed to consider those acts without force, which more properly come under the title of escape.

There is little worthy of remark in the books respecting an escape effected by the party himself, without force: but the general principle appears to be, that, as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it by any artifice, and elude the vigilance of their keepers, before they are put in hold, are guilty of an offence in the nature of a high contempt, and punishable by fine and imprisonment.(c)1 And it is also criminal in a prisoner to escape from lawful confinement, though no force or artifice be used on his part to effect such purpose. Thus, if a prisoner go out of his prison without any obstruction, the doors being opened by the consent or negligence of the gaoler, or if he escape in any other manner, without using any kind of force or violence, he will be guilty of a misdemeanor; and if his prison be broken by others, without his procurement or consent, and he escape through the breach so made, he may be indicted for the escape.(d)

Upon an indictment for an escape from the house of correction, after conviction for a capital offence and conditional pardon, it was held that a certificate of the former conviction by the clerk of assize was not evidence, there being no Act which made it evidence. (e) But the 4 Geo. 4, c. 64, s. 44, to the intent that *prosecutions for escapes, breaches of prison, and rescues, may be carried *582] on with as little trouble and expense as possible, enacts (amongst other things), that in case of any prosecution for any escape, attempt to escape, breach of prison or rescue, either against the offender escaping or attempting to escape, or having broken prison, or having been rescued, or against any other person or persons concerned therein, or aiding, abetting, or assisting the same, a certificate given by the clerk of assize, or other clerk of the court in which such offender shall have been convicted, shall, together with due proof of the identity of the per

(a) Terms de la Ley.

(b) 1 Hale 590; 2 Hawk. P. C. c. 17, 18, 19, 20, 21.

(c) 2 Hawk. P. C. c. 17, s. 5; 4 Blac. Com. 129.

(d) 1 Hale 611; 2 Inst. 589, 590; Summ. 108; Staund. P. C. 30, 31; 2 Hawk. P. C. c. 18, ss. 9, 10.

(e) Rex v. Smith, East. T. 1788, MS., Bayley, J. So neither the production of the calendar of the sentences signed by the clerk of assize, and by him delivered to the governor of the prison, nor the evidence of a person who heard sentence passed, is sufficient to prove that a prisoner is in lawful custody under a sentence of imprisonment passed at the assizes; the record itself should be produced; unless other proof be provided by statute: Reg. v. Bourdon, 2 C. & K. 366 (61 E. C. L. R.), Maule, J.

1 State v. Doud, 7 Conn. Rep. 384. But the court for such offence will not inflict a punishment exceeding that from which the offender escaped: Ibid. When an indictment for an escape charged that the defendant, being confined in a jail under conviction and sentence for larceny, escaped therefrom, it was held, that as only a convict can commit the offence charged, it was necessary, in order to support the indictment, to prove that the person charged with the escape was the same who was convicted of larceny: State v. Murphy, 5 Eng. 74.

son, be sufficient evidence to the Court and jury of the nature and fact of the conviction, and of the species and period of confinement to which such person was sentenced. (f) It was decided upon the 56 Geo. 3, c. 27, s. 8 [now repealed], that the certificate of a former conviction, authorized by that statute, should set forth the effect and substance of the conviction; and that stating it to have been for felony only was insufficient. The prisoner was indicted for being at large after a sentence of transportation for seven years: the indictment only stated that he had been convicted of felony, without specifying the nature of that felony; and the certificate to prove the former conviction was in the same form; and the judges thought this case decided by a former case of Rex v. Sutcliffe, and that both the indictment and certificate were insufficient.(g)

The 11 & 12 Vict. c. 42, ss. 12, 13, 14 and 15, provides for the apprehension of persons charged with indictable offences, who escape into Ireland, the Isles of Man, Guernsey, Jersey, Alderney, or Sark, and Scotland, and for the dealing with such persons after their apprehension; and the Act also provides for the apprehension of persons so charged who escape from these territories into England.

Escapes effected, or, perhaps, more properly, suffered by others than the party himself, without force, by permission or negligence, may be either-I. By officers; or, II. By private persons.

Sec. I-Of Escapes suffered by Officers.

An escape of this kind must be from a justifiable imprisonment for a criminal. matter, after an actual arrest.

As there must be an actual arrest, it has been holden, that if an officer, having a warrant to arrest a man, see him shut up in a house, and challenge him as his prisoner, but never actually have him in his custody, and the party get free, the officer cannot be charged with an escape.(h)

*The arrest and imprisonment must be justifiable; for, if a party be [*583 arrested for a supposed crime, when no such crime was committed, and the party neither indicted nor appealed, or for such a slight suspicion of an actual crime and by such an irregular mittimus as will neither justify the arrest nor imprisonment, the officer is not guilty of an escape by suffering the prisoner to go at large.(i) But it seems that if a warrant of commitment plainly and expressly charge the party with treason or felony, though it be not strictly formal, the gaoler, suffering an escape, is punishable; and that where commitments are good in substance, the gaoler is as much bound to observe them as if they were made ever so exactly.(k) It is stated as a good general rule upon this subject that, whenever an imprisonment is so far irregular that it will be no offence in the prisoner to break from it by force, it can be no offence in the officer to suffer him to escape.(7)

The imprisonment must not only be justifiable, but also for some criminal matter. But the escape of one committed for petit larceny (m) only was criminal; and it seems most agreeable to the general reason of the law that the escape of a person committed for any other crime whatsoever should also be criminal.(n) The imprisonment must also be continuing at the time of the escape; and its continuance must be grounded on that satisfaction which the public justice demands for the crime committed. So that if a prisoner be acquitted, and detained only for his fees, it will not be criminal to suffer him to escape, though the judgment were that

(f) See the 14 & 15 Vict. c. 99, s. 13, post, Evidence.

(9) Rex v. Watson, Mich. T. 1821, MS., Bayley, J., and R. & R. 468. The prisoner was. remitted to his original sentence. The 26 Geo. 3, c. 27, s. 3, authorized a certificate containing the effect and substance only, omitting the formal part, of every indictment, conviction, &c.

(h) 2 Hawk. P. C. c. 19, s. 1.

(2) Ibid. s. 2.

(k) Ibid s. 24. A commitment to a prison, and not to a person, was held good in Rex v. Fell, 1 Lord Raym. 424.

(2) Id. Ibid. s. 2. And see post, chap. xxxiii.

(m) The distinction between grand and petit larceny was abolished by the 7 & 8 Geo. 4, c. 29, s. 2, and 24 & 25 Vict. c. 96, s. 2.

(n) 2 Hawk. P. C. c. 19, s. 3; 1 Hale 592.

VOL. 1.-30

he should be discharged, "paying his fees;" he being in such case detained only as a debtor: but if a person, convicted of a crime, be condemned to imprisonment for a certain time, and also "until he pays his fees," it is said, that perhaps an escape of such person, after the time of his imprisonment is elapsed, without paying his fees, may be criminal; as it was part of the punishment that the imprisonment should be continued till the fees should be paid.(0)

The next important inquiry upon this subject will be, whether the escape be voluntary or negligent, as the former is a much more serious offence than the latter. Whenever an officer, having the custody of a prisoner charged with, and guilty of, a capital offence, knowingly gives him liberty with an intent to save him either from his trial or execution, such officer is guilty of a voluntary escape; and thereby involved in the guilt of the same crime of which the prisoner is guilty, and for which he was in custody.(p) Hawkins says, that it seems to be the opinion of Sir M. Hale, (q) that in some cases an officer may be adjudged guilty of a voluntary escape who had no such intent to save the prisoner, but meant only to give *584] him a liberty which, by law, he had no color of right to give; as if a gaoler

should bail a prisoner who is not bailable: but he withholds his assent to that opinion, on the grounds that it is not sufficiently supported by authorities, and does not seem to accord with the purview of the 5 Edw. 3, c. 8, relating to the improper bailing of persons by the marshals of the King's Bench.(r) He says also, that it seems to be agreed that a person who has power to bail is guilty only of a negligent escape, by bailing one who is not bailable; and that there are some cases wherein an officer seems to have been found to have knowingly given his prisoner more liberty than he ought to have had (as by allowing him to go out of prison on a promise to return; or to go amongst his friends, to find some who would warrant goods to be his own which he is suspected to have stolen), and yet seems to have been only adjudged guilty of a negligent escape.(s) And he concludes by saying, that if, in these cases, the officer were only guilty of a negligent escape, in suffering the prisoner to go out of the limits of the prison, without any security for his return, he could not have been guilty in a higher degree if he had taken bail for his return; and that from thence it seems reasonable to infer that it cannot be, in all cases, a general rule that an officer is guilty of a voluntary escape by bailing his prisoner, whom he has no power to bail, but that the judgment to be made of all offences of this kind must depend upon the circumstances of the case; such as the heinousness of the crime with which the prisoner is charged, the notoriety of his guilt, the improbability of his returning to render himself to justice, the intention of the officer, and the motives on which he acted.(t)

It appears to have been holden, that it is an escape in a constable to discharge a person committed to his custody by a watchman as a loose and disorderly woman, and a street-walker, although no positive charge was made.(u)

A negligent escape is where the party arrested or imprisoned escapes against the will of him that arrests or imprisons him, and is not freshly pursued and taken again before he has been lost sight of.(v) And, from the instances of this offence mentioned in the books, it seems that where a party so escapes the law will presume negligence in the officer. Thus, if a person in custody on a charge of larceny,

(0) 2 Hawk. P. C. c. 19, s. 4. This seems to be a good reason; but Hawkins says that it is to be intended only where the fees are due to others as well as to the gaoler; for, otherwise, the gaoler would be the only sufferer by the escape; and that it would be hard to punish him for suffering an injury to himself only in the non-payment of a debt in his power to release.

(p) Staund. P. C. 33; 2 Hawk. P. C. c. 19, s. 10; 4 Blac. Com. 129.
(g) Sum. 113; 1 Hale 596, 597.
(r) Post, p. 589.

(3) Hawkins says, however, that it must be confessed that, in these cases, the prisoner was only accused of larceny, and that it does not appear whether he were bailable or not; and that, generally, the old cases concerning this subject are so very briefly reported that it is very difficult to make an exact state of the matter from them.

(t) 2 Hawk P. C. c. 19, s. 10.

(v) Dalt. c. 159; Burn's Just. tit. Escape, IV.

(u) Rex v. Bootie, 2 Burr. 864.

1 It is a felony at common law for the keeper of a prison to voluntarily suffer a prisoner charged with felony to escape: Weaver v. Comm., 5 Casey 445.

« ForrigeFortsett »