minds in relation to any cause, &c. is punishable by imprisonment in a state prison not more than five years, or in a county jail not more than one year, or by a fine not more than $1000, or both such fine and imprisonment.(w) 3. ESCAPES FROM PRISON; ASSISTING THEREIN; AND RESCUE. An escape is, where one who is arrested gains his liberty before he is delivered by the due course of law. (x) 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 termed 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.(y) We shall consider, 1. Escape by the prisoner. 2. Escape by means of the officer; which may be either negligent or voluntary. 3. Assisting prisoners to escape. 4. Rescue. 1st. Escape by the prisoner.] To constitute an escape there must be an actual and justifiable arrest for a criminal offence.(z) The imprisonment under such arrest must be continuing at the time of the escape, and must have so continued legally and for the purposes of public justice.(a) Any place in which a person legally arrested, on suspicion of crime, is restrained of his liberty, is, for this purpose, a prison; for imprisonment is only a restraint of liberty.(b) To constitute a prison-breach there must be an actual breaking. Passing out through an open door, (c) or merely getting over a wall, (d) will not amount to prison-breach. But where a prisoner, intending to escape only, accidentally threw down some loose bricks from the top of the prison wall, that was held a sufficient breaking. (e) A prison-breaker may be arraigned for that offence before he is arraigned for the trial for which he is imprisoned.(ƒ) Prison-breach is a common law felony if the offender is a convicted felon.(g) (w) 2 R. S. 683, § 12. (x) 1 Russ. on Cr. 367. (y) 1 Hale, 590. 2 Hawk. P. C. 17, &c. 1 Russ. 367. (z) 1 Hale, 594. 2 Hawk. c. 19, §§ 1, 2, 3. (a) 2 Hawk. c. 19, s. 4. 1 Russ. on Cr. 367. (b) 2 Hawk. c. 18, § 4. (e) Russ. & Ry. C. C. 458. By the revised statutes, if any prisoner confined in a state prison for any term less than for life, shall break such prison and escape from thence, he shall, upon conviction, be punished by imprisonment in such prison for a term not exceeding five years, to commence from and after the expiration of the original term of his imprisonment. (h) And if any person confined in a county jail upon any conviction for a criminal offence shall break such jail and escape, he is punishable by imprisonment in a state prison not more than two years, or in a county jail not more than one year, to commence from the expiration of his former sentence.(i) The mere attempt to escape from a state prison by any person lawfully imprisoned therein, for any term less than for life, by force and violence to any person, whether such escape be effected or not, is punishable by imprisonment in a state prison for a term not exceeding five years, to commence after the termination of his former term of imprisonment.(k) So, every person lawfully imprisoned in a county jail, for any cause whatever, who shall forcibly break the prison, with intent to escape; or who shall attempt, by any force or violence, to escape from such prison, although no escape be effected, is punishable by imprisonment in a county jail, not exceeding one year. (1) The statute also provides that if any prisoner confined in a county jail, or in a state prison, upon a conviction for a criminal offence, shall escape therefrom, he may be pursued, retaken and imprisoned again, notwithstanding the term for which he was sentenced to be imprisoned may have expired at the time when he shall be retaken; and shall remain so imprisoned until tried for such escape, or until he be discharged, on a failure to prosecute therefor.(m) 2d. Escape by means of the officer.] This may be either negligent or voluntary. A negligent escape is where the prisoner escapes against the will of his lawful keeper.(n) To allow a prisoner greater liberty than he by law ought to have, may be an escape. (o) Allowing a prisoner to go at large for a time and return again is an escape though he does return again.(p) If a prisoner flees and the jailer retakes him, without losing sight of him, this is no escape; but if the jailer loses sight of him it is an escape, though he afterwards retakes him. (g) Only known officers of (h) 2 R. S. 685. § 21. (i) Id. ib. § 22. (k) Id. ib. § 23. (1) Id. ib. § 24. (m) Id. § 14. (n) Dalt. c. 159. Crown Cir. Comp. 188. (0) 2 Hawk. c. 19, s. 5. (p) Dalt. c. 159. (q) 2 Hawk. c. 19, s. 6, the law can be guilty of suffering prisoners to escape.(r) If a prisoner suddenly, without the assent of the jailer, destroys himself, this is a negligent escape.(s) If a prisoner for felony break the jail, this also seems to be a negligent escape in the jailer, because there wanted either due strength in the jail, or due vigilance in the jailer or his officers. (t) Wherever an officer who has the custody of a prisoner charged with and guilty of a capital offence, knowingly gives him his liberty, with intent to save him from his trial or execution, this is a voluntary escape.(u) If a constable or other officer voluntarily suffers a prisoner being in his custody to destroy himself, this is felony both in the constable and the prisoner, and both are punishable, at common law, in the same degree.(v) The provisions of the revised statutes respecting escapes by means of the officer, are as follows: If any sheriff, jailer, marshal, coroner or constable shall, 1. Wilfully and corruptly refuse to execute any lawful process directed to them, or any of them, requiring the apprehension or confinement of any person charged with a criminal offence; or 2. Shall corruptly and wilfully omit to execute such process, by which such person shall escape; or 3. Shall wilfully refuse to receive in any jail under his charge, any offender lawfully committed to such jail, and ordered to be confined therein, on any criminal charge or conviction, or on any lawful process whatever; or 4. Shall wilfully suffer any offender, lawfully committed to his custody, to escape and go at large; or 5. Shall receive any gratuity or reward, or any security or engagement for the same, to procure, assist, connive at, or permit any prisoner in his custody on any civil process, or on any criminal charge or conviction, to escape; whether such escape be at tempted or effected or not; he shall, upon conviction, be punished by imprisonment in a county jail not exceeding one year, or by fine not exceeding $1000, or by both. (w) And every such officer who shall be convicted of any of the offences above specified shall forfeit his office, and be forever disqualified to hold any office or place of trust, honor or profit, under the laws or constitution of this state.(x) 3d. Assisting prisoners to escape.] The aiding and assisting a prisoner to escape out of prison, by whatever means it may be effected, is an offence of a mischievous nature, and an obstruction to the course of jus (r) 2 Chit. Burn. 5, 6. Crown Cir. Comp. 188. (s) Dalt. 159. (t) 2 Hawk. c. 19, s. 10. (u) Id. ib. § 22. 1 Hale, 234. (v) Dalt. c. 159. 2 Hawk. P. C. ch. 19, s. 22. 1 Hale, 234. (w) 2 R. S. 684, § 18. (x) Id. ib. § 19. tice; and the assisting a felon in making an actual escape, is felony at common law. (y) By the revised statutes it is provided that every person who shall convey into a state prison, jail, or other place of confinement, any disguise, instrument, arms, or other thing, proper or useful to aid any prisoner in his escape; with intent thereby to facilitate the escape of any prisoner lawfully committed to, or detained in such prison, jail, or place for any felony whatever, whether such escape be effected or attempted or not, shall, upon conviction, be punished by imprisonment in a state prison not exceeding ten years.(z) And the same punishment is prescribed for every person who shall, by any means whatever, aid and assist any person lawfully detained in a state prison, or in any jail, or place of confinement for any felony, to escape therefrom, whether such escape be effected or not.(a) Every person who, by any means whatever shall aid or assist any prisoner lawfully committed to any jail or place of confinement, in execution of any conviction for a criminal offence other than a felony, whether such escape be effected or not; or who shall convey into such jail or place of confinement any disguise, &c., proper or useful to facilitate the escape of such prisoner, shall be punished by imprisonment in a county jail not more than one year, or by a fine not more than $500 or both. (b) But if such aid and assistance prohibited by the two last sections be rendered by any prisoner detained for any crime in the same jail, &c., with the intent of facilitating his own escape, his punishment shall not exceed that prescribed on a conviction for his own escape.(c) Aiding and assisting any prisoner in escaping or in attempting to escape from the custody of any sheriff or other officer or person having the lawful charge of such prisoner, upon any criminal charge, is punishable by imprisonment in a county jail not exceeding one year, or by fine not exceeding $250, or by both.(d) 4th. Rescue.] This is the offence of forcibly and knowingly freeing another from arrest or imprisonment. (e) It is of the same nature as the offence of prison breaking. Thus, whatever is such a prison that the prisoner himself would, by the common law, be guilty of felony in breaking from it, a stranger would be guilty of as high a crime, at least, in rescuing him from it. (f) It is not material whether the person arrested (y) 2 Leach, 671. (c) Id. ib. § 16. for felony or suspicion of felony, be in the custody of a private person or of an officer. Yet, if he be in the custody of a private person, it seems the rescuer should be shown to have knowledge of the party being under arrest for felony.(g) The revised statutes provide that every person who shall forcibly rescue any prisoner held in legal custody upon any criminal charge, shall, upon conviction, be punished by imprisonment in a state prison not exceeding ten years. (h) (g) 1 Hale, 606. (h) 2 R. S. 684, § 14. |