CHAPTER LI.

OF FELONY BY VOLUNTARY ESCAPES, AND TOUCHING FELONY BY ESCAPES OF FELONS.

HAVING in a former chapter said somewhat of arrests, it remains that somewhat be said touching those felonies that relate to the escape of persons arrested or imprisoned.

And these escapes are of three kinds, 1. By the person that hath the felon in his custody, and this is properly an escape; and 2. When the escape is caused by a stranger, and this is ordinarily called a rescue of a felon. 3. By the party himself, which is of two kinds, viz. 1. Without any act of force, and this is a simple escape. 2. With an act of force, viz. by breach of prison.

As to the first, touching an escape separate by the person that hath a felon in custody, which is properly an escape; and this is of two kinds, voluntary and negligent.

And first concerning the voluntary escape.

A voluntary escape is when any person having a felon lawfully in his custody voluntarily permits him to escape from it, or go at large, and this is felony in case the person be imprisoned for felony, and treason in case the person be imprisoned for treason; for the [591] latter enough hath been said before; touching the former in this place.

And altho Mr. Stamford, Lib. I. cap. 26, 27, 28, 29, 30, 31. hath collected almost all that can be well said in this case, yet I shall proceed distinctly herein.

And therein I shall as near as I can, observe this order.

1. I shall consider who shall be said a felon, whose escape makes a felony in him that voluntarily suffers it. 2. What shall be said a having of such a felon in his custody. 3. Who shall be said a person lawfully having such a felon in his custody. 4. What shall be said a voluntary escape of such a felon out of his custody. 5. Who shall be said voluntarily to suffer such a felon to escape. 6. What is the offense of such a voluntary permission of an escape, and where, and how punishable.

And tho I apply these particulars to a voluntary escape, yet many of them are applicable unto, and useful for the learning of a negligent escape.

I. Who shall be said a felon, whose voluntary escape is felony in him that so permits it.

If A. gives B. a mortal wound, and before B. dies the constable takes A. into custody, either with or without a justice's warrant, and then lets him voluntarily escape before B. is dead, and then B. dies tho as between A. and B. or A. and the king, this is is a felony from the stroke given, and the attainder of A. as to the forfeiture of his lands relates to the stroke; yet this is no felony in the constable, but

only a misdemeanor punishable by fine and imprisonment. 11 H. 4. 12 b. Plowd. Com. 258. b.

If A. be indicted for felony, and taken by Capias, or by the warrant of a justice, or by the constable &c. and committed to prison, and the gaoler suffers A. to escape voluntarily, this is the escape of a felon, tho A. be not attainted at the time of the escape, but the gaoler shall not be arraigned thereupon till after the attainder of A. de quo infra. If a felony be in fact committed, and the constable takes A. upon suspicion of felony, and after voluntarily suffers him to go at large, tho A. be not then indicted, yet this is a felonious [592 escape in the constable, tho 42 Assiz. 5. be otherwise, (a) yet 44 Assiz. 12 Dy. 99. a. 43 E. 3. 36. a. accord. (b)

And altho the constable be well assured after the arrest by him made, that A. was not the person that did it, yet he may not by the law discharge him, but must bring him before a justice, who may upon due circumstances discharge, bail, or commit him, as he sees cause; but the constable, if he discharges him, is finable.

But if the constable after the arrest finds certainly, that there was no felony committed, it is held he may discharge him both without danger of felony, (which is true,) and without any danger of fine and imprisonment, 13 H. 7. Kelw. 34. a. b. but then it is at his peril, if in truth there were a felony committed, and the party be guilty; sed de his vide infra, Dalt. cap. 106. p. 271. accords. (c)

If A. be committed for petit larceny, and so it appears by the charge of his Mittimus, and the gaoler lets him at large, this is a contempt, for which he shall be fined, but not felony in the gaoler; so if he were convicted of petit larceny before the escape. Stamf P. C. Lib. I. cap. 27. p. 33. b. 8. E. 2. Coron. 430.

So if a man be originally committed for manslaughter per infortunium or se defendendo, or were convict only se defendendo or per infortunium, and afterwards the gaoler suffers him voluntarily to escape, it is no felony; but if the commitment or indictment were for manslaughter, tho in truth it were but se defendendo, yet primâ facie a voluntary escape is indictable as felony, tho in eventu it may fall out otherwise; de quo infra.

If A. be indicted of murder for the death of B. and pardoned or acquitted within the year, but left in jail till the [593] year be elapsed, upon the statute of 3 H. 7. cap. 1. that the wife may bring her appeal if she pleases, and after that acquittal, and within the year, the gaoler suffers him voluntarily to escape, it is

(a) That was the case of a negligent (not a voluntary) escape, and for that reason could not be felony, tho it is there given as a reason, why it should not be adjudged an escape, because the thief was not taken with the mainouvre, nor at the suit of the party, nor indicted of felony.

(b) This case is plainly the same with 44 Assiz. 12. and seems to be the case of a voluntary escape; it does not report any resolution of the court, but only says, that the bailiffs who let the thief go, altho he were not indicted, were charged with an escape; and a quære is added at the end of the case: and as to the case in Dyer, that was not the case of the person arresting letting the thief go, but of a third person's rescuing him, and that is said to be felony, altho he was not indicted. See 1 E. 316. b.

(c) New Edit. p. 511.

felony prima facie, and the gaoler may be indicted for it as felony; but if the wife brings not her appeal within the year, or bringing her appeal A. is acquitted, the gaoler ought to be acquitted: vide infra, Plowd. Com. 476. b.

If A. commits felony, and being convicted prays his clergy and the court take time to advise upon it till another sessions, and in the mean time he is left in gaol, as he ought to be, and the gaoler voluntarily suffer him to make his escape, this is felony in the gaoler, for such a prisoner stands yet under a conviction of felony, and therefore is not by law bailable; but if the felon be retaken, and hath his clergy, the felony in the escape is purged, and the gaoler is not indictable after, or if indicted before the clergy allowed, he is to be acquitted.

İf A. be indicted of felony, and hath his clergy, but is continued for six months in custody for his farther correction, according to the power given by the statute of 18 Eliz. cap. 7. and the gaoler suffer him to escape voluntarily, it is a misdemeanor punishable by fine and imprisonment, but no felony.

If a man be delivered to the ordinary as a clerk convict upon his own confession, or as a clerk attaint, in which cases he ought not to be admitted to purgation, and the ordinary notwithstanding admit him to his purgation, and set him at large, this, at common law, had been a misdemeanor fineable; but it seems it had not been felony in the ordinary; for in those times there was a pretension, that a clerk was not within the temporal jurisdiction; but the law concerning purgation is altered since by the statute of 18 Eliz. cap. 7. and other statutes; de quo infra, 21 Assiz. 12. 9 E. 4. 28.

Thus far what shall be said a felony.

II. What shall be said to be a having in custody.

Every man is bound by law to pursue and take a felon; and if he makes not pursuit, he is fineable.

But if A. commits a felony in the presence of B. and B. [594] never takes him, nor attempts it, this is not felony in B. for B. had him not in his custody.

So it is if A. commits a felony, and B. receives him knowing him to be a felon, and then B. voluntarily suffers him to depart, tho the receipt makes him accessary after, yet it is no escape by B. because he never arrested him, and so had him not in custody. 9 H. 4. 1.(d)

If A. being acquit of felony, judgment is given, that he shall go free paying his fees, tho the gaoler lets him go before fees paid, it is not felony, for by that judgment he is no longer in custody as a felon. 21 H. 7. 17.

If the constable arrest a man for felony, and bring him to the gaol, and the gaoler refuse to receive him, yet in law he is in the custody of the constable, and if he lets him go, he is chargeable in an escape. 10 H. 4. 7. a. Escape 8.

If A. have a franchise to have the custody of felons in his gaol [for

(d) 24 b.

three days,](e) and then to deliver over to the sheriff or county-gaol, and after the three days he offers him to the county-gaol, and the gaoler do not receive him, he yet remains a prisoner to A. and if he suffers a voluntary escape, it is felony, 27 Assiz. 27. yet in both these cases the gaoler is punishable for not receiving the felon by 4 E. 3. cap. 10.

If A. arrest B. of felony, and deliver him to the constable or to the vill, and they receive him, A. is discharged of the custody, and the escape after is chargeable upon the constable or vill, and if the constable or vill deliver him to the sheriff or his gaoler, and he receive him, the constable and vill are discharged of the custody, and the sheriff or gaoler is chargeable with the escape after. 3 E. 3. Coron. 328. 337.

As touching escapes without arrests, they belong not to this title of voluntary escapes; sed hæc vide infra & supra.

If A. the sheriff of B. hath a felon in gaol, and then C. is made sheriff, till the prisoner be turned over by indenture to the new sheriff, the custody of him remains in A. and he or his gaoler is

chargeable for a negligent escape, and his gaoler chargeable [595] for a voluntary escape.

If the bailiff of a franchise, that hath a gaol, hath the custody of a felon, he is chargeable for his escape, and not the sheriff or his goaler.

III. Who shall be said a person lawfully having the custody of a felon: this hath been touched in the former section, but now shall be farther prosecuted.

If A. a meer private man knows B. to have committed a felony, he may thereupon arrest him of felony, and he is lawfully in the custody of A. till he be discharged of him by delivering him to the constable or common gaol; and therefore if he voluntarily suffers him to escape out of his custody, tho he were no officer, nor B. indicted, it is felony in A.

So it is, if a felony be in fact committed, and A. hath a probable cause to suspect B. and accordingly suspects and arrests him, B. is lawfully in the custody of A. for suspicion of felony; and if he voluntarily lets him escape, it is felony in A. in eventu, viz. if B. proves really guilty of the felony.

And accordingly if A. deliver the party so arrested to the constable's custody, he is lawfully in his custody, and if he suffer the escape voluntarily, it is felony in eventu. 44 Assiz. 12.

If a justice of peace make a Mittimus to the gaoler for felony with an unapt conclusion, as till the justice give order for his delivery, whereas it should be till he be delivered by due course of law, tho this warrant be not formal, yet the felon is lawfully in his custody, and if he let him voluntarily escape, it is felony, for he is sufficiently ascertained of the crime with which he is charged.

(e) These words are not in the original MS. but yet are plainly supposed in the argument, and are mentioned in the case here quoted by our author, viz. 27 Assiz. 27.

And it seems to me, if the Mittimus be general and contain no certain cause, tho the gaoler is not bound to receive him upon such a Mittimus, yet if he be acquainted what the crime is for which he is committed, if he suffer him voluntarily to escape, it is felony.

For if a private person or a constable arrests a man for felony, and carry him to the common gaol, (as he may do by law, 13 E. 4. 9.

and the gaoler is bound to receive him by the statute (ƒ) of [596] 4 E. 3. cap. 10. if the constable or person that delivers him, acquaints the gaoler it is for felony, it is at the peril of the gaoler if he lets him escape, and yet there is no Mittimus in that case, but a notice ore tenus.

The stocks is the prison of the constable, and so long as he is in the stocks he is in the constable's custody, and therefore if the constable wilfully let a felon escape out of the stocks, and go at large, it is felony in the constable, unless it be to bring him to a justice, or to a safer or more convenient custody.

IV. What shall be said a voluntary escape of a felon in custody, for it must be voluntary escape to make felony.

If the prisoner be rescued, or rescue himself against the will of him that hath him in custody, this is no voluntary escape, nor is the gaoler, &c. punishable for the same.

If the prison be fired, and the gaoler lets out the prisoners, there being no other means to save their lives, and uses the best means he can by his officers and irons to keep them safe, and this without fraud, or if enemies force him to open the prison doors, and he doth it to save his life, it excuseth from felony.

And if it be done by rebels, tho this excuse not the gaoler or sheriff in civil actions, but he is liable to an action of debt, or upon the case for the escape, because the sheriff hath his remedy over, yet it excuseth the gaoler from felony, and also from a fine, if it be vis major, quam cui resisti potest.

If a justice of peace bail a person not bailable by law, it excuseth the gaoler, and it is not felony in the justice, but a negligent escape, for which he is fineable at common law, 25 E. 3. 39.,(g) and by the justices of gaol-delivery by the statute of 1 & 2 P. & M. cap. 13.

And the like in case of a sheriff, under-sheriff, constable, bailiff of a liberty bailing one that is not by law bailable, it is not a voluntary escape, at least unless done by design to deliver the prisoner for ever, but it is a negligent escape punishable at common [597] law, or according to the statute of 3 E. 1. cap. 15. by loss of office, fine, and three years imprisonment.

And therefore I think, that if a justice of peace bail a person, that confesseth a felony before him, it is no voluntary escape, but fineable

(f) This statute obliges the gaoler to receive felons by the delivery of the constables or townships, but says nothing as to the delivery by private persons.

(g) In the last edition of the year-books, which is in this place mispaged, it is 25 E. 3. 82. a.