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 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 a magistrate bails one who is not bailable, merely negligent. When the gaoler improperly permits the prisoner to go beyond the limits of the prison, it seems to depend on circumstances to which class of offence the act will be regarded as belonging, id. s. 10. Not only officers, but private individuals who have persons lawfully in their custody, are guilty of an escape if they suffer them illegally to depart, 1 Hale, 595. But they may protect themselves from liability, by deliv. ering over their prisoners to some legal and proper officer, 1 Hale, 594, 5.; though to excuse themselves, they must not merely allege that they transferred them to the constable, &c. but must set forth particularly and by name, the party to whom they delivered them, Hawk. b. 2. c. 20. s. 5.-As to the indictment. See Hawk. b. 2. c. 19. s. 14. it must state the crime for which the party was in custody, and not merely in general that it was felony, and this must be proved, Hawk. b. 2. c. 19. s. 14, 22. Dyer, 99. 3 P. Wms. 497. Cro. Eliz. 52. It must also be shown, that the prisoner was actually in the defendant's custody upon the spe. cific charge; for to say that he was charged and in custody will not suffice, unless the accusations are connected, 1 Salk. 272. 1 Ld. Raym 424. Hawk. b. 2. c. 19. s. 14. The time also when the offence was committed for which the party was in custody must be specified, to show that it was prior to the escape and subsequent to the last general pardon, Hawk. b. 2. c. 91. s. 14. It should also be shown that the party went at large, which is best expressed by the words exivit ad largum, id. ibid. And every indictment for a voluntary escape must allege that the defendant "feloniously and voluntarily permitted the said A. B. to go at large," id. ibid. In Cro. C. A. 338. the indictment is for a misdemeanour, but it should seem it should be for a felony, 3 P. Wms. 497. But in an indictment against a constable for the escape of a street walker, delivered by a watchman into his custody, it is not necessary to aver that she was delivered to him as such, or that he knew her so to be, but the words "she being," &c. will suffice, 2 Burr. 864.-Mode of trial, &c. Escapes amounting to felony in officers or others, and which make the of fenders accessary to the original offence, cannot be tried or determined before the conviction or attainder by other means of the original offender, for a felony; though they may be fined and imprisoned as for a high misprision, 2 Inst. 592. 1 Hale, 598, 9. The officer cannot be brought to judgment by calling over the record of prisoners, though on that he may be fined for a negligent escape, but must be proceeded against by indict ment, 1 Hale, 599, 560. Though by statute Westminster 1. c. 3. proceed. ings could only be before justices in eyre, oyer and terminer, or by the king's bench, by 1 R. 3. c. 3. and 31 E. 3. c. 14. escapes are brought within the jurisdiction of the county magistrates, 1 Hale, 560. The proper mode of proceeding for a negligent escape is also by indictment or presentment, 1 Hale, 563.-Judg ment. A voluntary escape amounts to the same kind of crime, and is punishable in the same way as the original offender, whether he be attainted, indicted, or only in custody on suspicion, 1 Hale, 234. Hawk. b. 2. c. 19. s. 22. A person who wrongfully takes on himself the office of gaoler is as much liable as if he were duly appointed, 1 Hale, 594. A mere informality in the mittimus will be no excuse, 1 Salk. 273. Hawk. b. 2. c. 19. s. 24. But no one can be punishable in this degree for the default of a deputy, 1 Salk. 272, în notis. Nor can any gaoler be a felon in respect of a voluntary escape unless, at the time, the offence of his prisoner was felony, and cannot be made 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 escape from and out of the said gaol, and go at large, to wit, at, &c. against the peace, &c. ment at That at the assizes and general delivery of the gaol of our Indictlord the king, holden at Hereford, in and for the county of Here- common ford, on, &c. before Sir R. P. knight, one of the barons of our law said lord the king of his court of exchequer, at Westminster, against a convicted gaoler for F. B. esq. one of the justices of our said lord the king, assigned voluntarily permitting to hold pleas in the court of our said lord the king, before the to escape king himself, and others their fellows, justices of our said lord a prisoner the king, assigned by letters patent of our said lord the king, to of a clerdeliver his gaol of the said county of H. of the prisoners therein, gyable felony at the being upon the oath of F. G. esquire, U. P. esquire, &c. [here assizes. set out the names of the grand jury,] good and lawful men of the (m) said county of H. then and there sworn and charged to inquire for our said lord the king, and the body of the said county of H. It was presented that W. D. &c. [here set forth the indictment.] Wherefore the sheriff of the county of H. aforesaid, was commanded that he should not omit by reason of any liberty in his [*174] bailiwick, but that he should take the said W. D. to answer the premises. And thereupon at the same assizes and general delivery of the gaol of our said lord the king, holden at H. in and for the so by its becoming so afterwards, 1 Hale, 591. Neither can he be thus indicted till after the attainder of the principal, Hawk. b. 2. c. 19. s. 26. though he may be fined for the misprision, id. ibid. A negligent escape may be punished by fine at com. mon law, Hawk. b. 2. c. 19. s. 31. A sheriff is thus liable for the fault of his deputy, 1 Salk. 272. One instance of such negligence, does not amount to a forfeiture of the jailor's office, though a repetition of such misfeasance will enable the court to oust him in their discretion, Hawk. b. 2. c. 19. s. 30. Anciently the pe. nalty for the negligent escape of the party attainted, was of course 100%. : of one indicted but not attainted 57. and of a prisoner before indictment, some discretionary sum; on the second escape the penalties were doubled, bnt no additional fine was (m) See forms Cro. C. C. 8 Ed. county of H. aforesaid, on, &c. aforesaid, before the said justices of our said lord the king above named, and others their fellows, aforesaid, came into court there the said W. D. under the custody of the said Sir E. B. baronet, sheriff of the county of H. aforesaid, (into whose custody in the gaol aforesaid, for the cause aforesaid he was before committed,) and being brought to the bar, there in his own proper person was committed to the said sheriff, and forthwith concerning the premises, in the indictment above specified and charged on him, being asked in what manner he would be acquitted thereof, the said W. D. said that he was not guilty thereof, and concerning that for good and ill he put himself upon his country, therefore a jury was thereupon immediately commanded to come before the said justices of our said lord the king above named, and others their fellows, aforesaid, there by whom and so forth, and who were of no affinity to the said W. D. to recognize upon their oath whether the said W. D. was guilty of the felony aforesaid or not, and the jurors of the said jury, by the said sheriff to that matter impanelled and returned, to wit, J. B. T. H. &c. [here set out the names of the petit jury,] being called, came, who being chosen, tried, and sworn to speak the truth of and concerning the premises, aforesaid, said upon their oath, that the said W. D. was guilty of the felony aforesaid, in the indictment above specified, in manner and form as in and by the said indictment was above against him set forth, and that the said W. D. at the time of the committing of the said felony, or at any time since, had no goods or chattels, lands or tenements, to the knowledge of the said jurors, and upon this it was required by the court there of the said W. D., if he had or knew any thing to say for himself, why the court there ought not to proceed to judgment and execution concerning him, upon the said verdict ; and the said W. D. prayed the court there, that the benefit of the statute in that case made and provided, might be granted unto him, and it was granted unto him accordingly. Whereupon all and singular the premises being seen and understood by the court there, it was considered and adjudged by the court there, that the said W. D. should be imprisoned six calendar months, and within that time, that is to say, on Saturday the twenty-second day of April then next, between the hours of eleven and one, should be publicly whipped for two hundred yards, at the market place in Hereford, and then discharged. And the jurors now here sworn and charged to inquire for our said lord the king, and the body of [*175] the said county of H. do further present, that, afterwards, to wit, at the said assizes, and general delivery of the gaol of our said lord the king, abovementioned, he the said W. D. was committed to the care and custody of R. D. then and still being keeper of the gaol of our said lord the king, of the county of H. aforesaid, at H. aforesaid, there to be kept and imprisoned in the gaol aforesaid, according to, and in pursuance of the judgment and sentence aforesaid, and the said R. D. him the said W. D. in the custody of him the said R. D. had, for the cause aforesaid, in the gaol aforesaid. And the jurors last aforesaid, upon their oath aforesaid, do further present, that the said R. D. late of the parish of Saint Peter, in the city of H. in the said county of H. yeoman, afterwards, and before the expiration of the said six calendar 'months, for which he the said W. D. was so ordered to be imprisoned as aforesaid, to wit, on, &c. at, &c. unlawfully, voluntarily, and contemptuously did permit and suffer the said W. D. to escape and go at large wheresoever he would, whereby the said W. D. did then and there escape out of the said prison, and go at large whithersoever he would, in contempt of our said lord the king and his laws, contrary to the duty of him the said R. D. so being keeper of the gaol aforesaid, in manifest hindrance of justice, and against the peace, &c. ment at common against a gaoler for ly permitting to es That on, &c. J. D. esq. then being one of the justices of our Indictsaid lord the king, assigned to keep the peace of our said lord the king, in and for the said county of Berks, and also to hear and law determine divers felonies, trespasses, and other misdemeanours committed in the same county in due form of law, did make his negligentwarrant of commitment, under his hand and seal, to wit, at, &c. bearing date the same day and year aforesaid, directed to the keeper cape a priof the common gaol, in and for the said county of Berks, by which mitted to said warrant, &c. [here recite the warrant,] as by the same war- custody, by virtue rant more fully appears, by virtue of which said warrant of com- of a jus mitment afterwards, to wit, on the said, &c. at, &c. A. B. then being the keeper of the said common gaol of the said county of B. robbery. did receive the said W. M. into his custody, in the said common (n) gaol there situate. And the jurors, &c. that the said A. B. late (n) See forms Cro. C. C. 8 Ed. 185. Cro. C. A. 331. and note to precedent, ante, 171′′, n. 7. soner com tice's war. rant for * of, &c, yeoman, so being keeper of the said common gaol, and having the said W. M. in his custody in the said gaol, on that occasion, afterwards, to wit, on, &c. at, &c. unlawfully and negligently did permit, and suffer the said W. M. (so being a prisoner, [176] committed to the said gaol as aforesaid) to escape and go at large, from and out of the custody of him the said A. B. out of the said prison, wheresoever he would, whereby the said W. M. did then and there escape out of the said prison, and go at large, whithersoever he would, to the great hindrance and obstruction of justice, in contempt, &c. to the evil example, &c. and against the peace, &c. Indictment at common of a justice's warrant Cheshire. The jurors, &c. That on, A. B. esquire, then being one of the justices, &c. [same as ante, 175*,] in due form of law law a- did make his warrant of commitment under his hand and seal, to gainst the turnkey of wit, at, &c. bearing date the same day and year aforesaid, directed a common to the keeper of the common gaol, in and for the said county of gaol for a misde- C. by which said warrant of commitment the said keeper was meanour, required to receive, &c. [here set forth the mittimus] as by the in aiding a prisoner, same warrant more fully appears, by virtue of which said warrant committed of commitment afterwards, to wit, on the said, &c. at, &c. G. H. by virtue then being keeper of the common gaol of the said county of C. did receive the said C. D. into his custody in the said common for petit gaol, there situate. And the jurors, &c. that D. M. late of, &c. larceny, to laborer, well knowing the premises, afterwards, and whilst the make his escape.(0) said C. D. was a prisoner as aforesaid, for the cause aforesaid, to wit, on, &c. with force and arms, at, &c. unlawfully, voluntarily, and unjustly did take, and cause to be taken, certain irons, chains, and fetters, then affixed and fastened upon the legs of the said C. D. from and off the same, he the said C. D. then being such prisoner as aforesaid, and also did permit him the said C. D. to go out at a certain back door of and belonging to the said gaol, and over a certain wall surrounding and inclosing the same, and to go at large out of the said prison, wheresoever he would, he the said D. M. then and there having the custody and keeping of the keys of and belonging to the said prison, whereby the said C. D. did then and there escape out of the said prison, and go at large whithersoever he would. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said D. M. then and there, in (o) See forms Cro, C. C. 8th Ed. 186. Starkie, 606. |