however, cannot be thus punished until after the original delinquent has been convicted; but before such conviction, he may be fined and imprisoned as for a misdemeanor. 4 Bl. Com. 130; 1 Hale, 234; 2 Hawk. c. 19, s. 22. Evidence. Prove the conviction of J. N., and that, upon his conviction, he was remanded or committed to the custody of the defendant, as keeper of the common gaol of the county of Berks. This may be proved by the certificate of the clerk of assize or other clerk of the court in which the offender shall have been convicted, which, together with proof of identity, is sufficient evidence of the nature and facts of the conviction, and of the species and period of the confinement. 4 G. 4, c. 64, s. 44, (ante, p. 550). The certificate must set forth the effect and substance of the conviction. R. v. Watson, R. & R. 468. Prove him afterwards to have been in the custody of the defendant, in pursuance of his sentence. And, lastly, prove the escape. It does not seem to be necessary to prove that the escape was voluntary; the law, it should seem, will presume that, until the contrary appear. SECT. 2. BREACH OF PRISON. Statutes. 1 Ed. 2, st. 2, c. 1.]-Concerning prisoners which break prison, our lord the King willeth and commandeth, that none from henceforth 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 con- [ *554 ] victed thereupon according to the law and custom of the realm, albeit in times past it hath been used otherwise. 7 & 8 G. 4, c. 28, s. 8—Offences not punishable by particular Stalutes]-Enacts, that every person convicted of any felony, not punishable with death, shall be punished in the same manner prescribed by the statute or statutes specially relating to such felony; and that every person convicted of any felony, for which no punishment hath been, or hereafter may be, specially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not ex ceeding two years; and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit), in addition to such imprisonment. Sect. 9-Place and Mode of Imprisonment]—With regard to the place and mode of imprisonment for all offences punishable under this act, enacts, that where any person shall be convicted of any offence punishable under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned or to be imprisoned and kept to hard labour in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole or any portion or portions of such imprisonment, or of such imprisonment with hard labour, as to the court in its discretion shall seem meet. See 7 W. 4 & 1 Vict. c. 90, s. 5, (ante, p. 169). * Indictment for breaking Prison. Proceed as in the precedent ante, p. 550, to the words “until he by due course or law should be discharged," in the description of the warrant of commitment, and then proceed thus:] by virtue of which said warrant, afterwards, to wit, on the day and year aforesaid, at the parish aforesaid, in the county aforesaid, the said J. N. was taken and conveyed to the said gaol of Newgate, and then and there delivered to one W. S., the keeper of the said gaol, and the said W. S., keeper of the said gaol, then and there received him the said J. N., in his custody in the gaol of Newgate, aforesaid. And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. N., late of the parish of B., in the county of M., labourer, afterwards, and whilst be so remained in custody of the said W. S., keeper of the said gaol, under and by virtue of the warrant aforesaid, to wit, on the third day of September in the year last aforesaid, with force and arms, at the parish aforesaid, in the county aforesaid, feloniously, [if he was committed for treason or felony), unlawfully, wilfully, and injuriously did break the gaol of Newgate aforesaid by then and there cutting and sawing two iron bars of the said gaol, and also by then and there breaking, cutting, and removing a great quantity of stone, parcel of the wall of the gaol aforesaid; by means whereof he the said J. N. did then and there escape, and go at large whithersoever he would; to the great hindrance and obstruction of justice, in [*555] contempt of our lady the Queen and her laws, to the evil *example of all others in the like case offending, and against the The venue may peace of our lady the Queen, her crown and dignity. be laid in the county where the offence was committed, or in that in which the defendant was apprehended and retaken. 4 G. 4, c. 64, s. 44, (anle, p. 550): Felony, if the defendant were in custody for treason or felony, 1 Ed. 2, st. 2; 1 Hale, 612, transportation for seven years, or imprisonment not exceeding two years, with or without hard labour for the chole or any part of the imprisonment, and with or without solitary confinement, 7 § 8 G. 4, c. 28, s. 9, such confinement not exceeding one month at any one time, nor three months in any one year, 7 W. 4 & 1 Vict. c. 90, s. 5, (ante, p. 169); and, if a male, to be once, twice, or thrice publicly or privately whipped, in addition to the imprisonment, if the court shall think fit; 7 & 8 G. 4, c. 28, s. 8: fine and imprisonment, if he were in custody for any other offence. 2 Hawk. c. 18, s. 21. Evidence. Prove the charges before the magistrate, and the warrant, as directed ante, p. 551. Prove that the defendant was afterwards lodged in the goal mentioned in the indictment, in the custody of the keeper; and prove that, while in custody there under the warrant, he broke the gaol and escaped. The escape must be proved, if the breaking be charged as a felony ; 2 Hawk. c. 18, s. 12; but otherwise, it should seem, if it be a misdemeanor only. And the breaking proved must be an actual breaking: merely getting over the walls, or passing out through a door, or the like, is an escape only, and not a breach of prison; 1 Hale, 611; and see R. v. Burridge, 3 P. Wis. 439; and on this account, it should seem that the manner of the breaking should be stated in the indictment, as in the above precedent, in order that the court may see necessary in law to constitute a breach of prison. not be intentional; and therefore where a prisoner, in effecting his escape, by accident threw down some loose bricks at the top of the prison wall, placed there to impede escape and give alarm, it was holden to be a prison breach. R. v. Haswell, R. & R. 458. that it was such as is But the breaking need Every place where a man's person is lawfully imprisoned, whether upon accusation or after conviction, such as the common gaol, the constable's house, the stocks, &c., is a prison within the meaning of the statute; 2 Hawk. c. 18, s. 4; and as described in the indictment, so it must be proved. Although it is not material, in this case, whether the defendant were guilty of the offence for which he was imprisoned or not, 2 Hawk c. 18, s. 16, yet if he can prove that no such offence was ever actually committed, or that he was arrested and detained without any reasonable cause of suspicion against him, 1 Hale, 610, 611, or if he have been subsequently indicted for the offence and acquitted, this will be a sufficient defence to the indictment for breach of prison. [ *556 ] *AIDING PRISONERS TO ESCAPE. Statute. 4 G. 4, c. 64, s. 43-Punishment]-Enacts, that if any person shall convey or cause to be conveyed into any prison to which this act shall extend, any mask, vizor, or other disguise, or any instrument or arms proper to facilitate the escape of any prisoners, and the same shall deliver or cause to be delivered to any prisoner in such prison, or to any other person there, for the use of any such prisoner, without the consent or privity of the keeper of such prison, every such person shall be deemed to have delivered such vizor or disguise, instrument or arms, with intent to aid and assist such prisoner to escape or attempt to escape; and if any person shall, by any means whatever, aid and assist any prisoner to escape or in attempting to escape from any prison, every person so offending, whether an escape be actually made or not, shall be guilty of felony, and, being convicted thereof, shall be transported beyond the seas for any term not exceeding fourteen years. 16 G. 1, c. 31, s. 1—Aiding Escapes.]-For the further punishment of persons who shall aid or assist prisoners to attempt to escape out of lawful custody, enacts, &c., that if any person shall, from and after the 24th day of June, 1743, by any means whatsoever, be aiding or assisting to any prisoner to attempt to make his or her escape from any gaol, although no escape be actually made, in case such prisoner then was attainted or convicted of treason, or any felony except petty larceny, or lawfully committed to or detained in any gaol for treason, or any felony except petty larceny, expressed in the warrant of commitment or detainer, every person so offending, and being thereof lawfully convicted, shall be deemed and adjudged guilty of felony, and shall he transported to one of his Majesty's colonies or plantations in America, for the term of seven years; and in case such prisoner then was convicted of, committed to, or detained in any gaol for petty larceny, or any other crime, not being treason or felony, expressed in the wariant of his or her commitment or detainer, as aforesaid, or then was in gaol upon any process whatsoever for any debt, damages, costs, sum or sums of money, amounting in the whole to the sum of one hundred pounds, every person so offending as aforesaid, and being thereof lawfully convicted, shall be deemed and adjudged to be guilty of a misdemeanor, for which he or she shall be liable to a fine and imprisonment. Sect. 2-Conveying into Prison the Means of Escape]-Enacts, that if any person shall, from and after the said 24th day of June, 1743, convey or cause to be conveyed into any gaol or prison, any vizor or other disguise, or any instrument or arms proper to facilitate the escape of the prisoners, and the same shall deliver or cause to be delivered to any prisoner in any such gaol, or to any other person there, for the use of any such prisoner, without the consent or privity of the keeper or under-keeper of any such gaol or prison, every such person, although no escape or attempt to escape be actually *made, shall be deemed to have [557 ] delivered such vizor, or other disguise, instrument, or arms, with an intent to aid and assist such prisoner to escape or attempt to escape; and in case such prisoner then was attainted or convicted of treason, or any felony except petty larceny, or lawfully committed to or detained in any such gaol for treason, or any felony except petty larceny, expressed in the warrant of commitment or detainer, every person so offending, and being thereof lawfully convicted, shall in like manner be deemed and adjudged guilty of felony, and shall be transported to one of his Majesty's colonies or plantations in America for the term of seven years; but in case the prisoner to whom, or for whose use, such vizor or disguise, instrument or arms, shall be so delivered, then was convicted, committed, or detained for petty larceny, or any other crime, not being treason or felony, expressed in the warrant of commitment or detainer, or upon any process whatsoever for any debt, damages, costs, sum or sums of money, amounting in the whole to the sum of one hundred pounds, every such person so offending, and being thereof lawfully convicted, shall be deemed and adjudged to be guilty of a nrisdemeanor, for which he or she shall be in like manner liable to a fine and imprisonment. Sect. 3-Aiding Escape from Constable]-Enacts, that if any person shall, from and after the 24th day of June, 1743, aid or assist any. prisoner to attempt to make his or her escape from the custody of any constable, headborough, tithingman, or other officer or person, who sball then have the lawful charge of such prisoner, in order to carry him or her to gaol, by virtue of a warrant of commitment for treason or any felony (except petty larceny) expressed in such warrant; or if any person shall be aiding or assisting to any felon to attempt to make his escape. from on board any boat, ship, or vessel, carrying felons for transportation, or from the contractor for the transportation of such felons, his assigns, or agents, or any other person, to whom such felon shall have been lawfully delivered in order for transportation; then every persons o offending, and being lawfully convicted thereof, shall be deemed and adjudged to be guilty of felony, and shall be transported to one of his Majesty's colonies or plantations in America, for the term of seven years. |