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Felonies by Statute.
' frangentibus. Prisonam. Fitz. Coron. 248.
Escape non adjudicubitur vers.
' ipsum qui commiss. est pro transgress. |
Chap. 159. |
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Now every one who is under Arrest for felony is
a Prisoner, and that as
well without the Prison as within, or in the Stocks in the High-street,
or
in the possession of any that hath arrested him, or that hath the keeping
of him being arrested for felony. Vide libro 2. M.
Finch. |
Dyer 99. |
§. 2.
Escape. |
And therefore if any person who is under Arrest
for felony, or suspicion
thereof, (whether he be in the Gaol or out, or but in the Stocks, or but
in
the possession of any that hath arrested him) if he shall make an escape,
this is a breaking of Prison in such Prisoner, and is felony. |
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And yet one committed to the Constable (by the Justice)
for suspicion
of felony, making an escape from the Constable, was after taken again,
and Indicted and Arraigned for that felony, and by the Jury of Life and
Death was found not guilty of that felony, and after was indicted for the
escape: But here considering the Prisoner was found not guilty for
the first
felony, therefore his escape from the Constable was holden not to be felony;
and so I have known the Jury directed by the Judge of Assise. |
1 E. 3. 17.
P. R. 147. |
§. 3.
Gaol. |
Before the Statute of 1 Ed. 2. if it had
not been in he Kings Prison which
had been broken, it had been no felony, as it appeareth by Brit. fol.
17.
and with him also agreeth the Book called the Mirror of Justice, lib.
2.
who saith thus, Gaole nest anter chose que common Prison, & nul
avera tiels
forsq; le Roy: Private Prison est danter, dont a chescun lift de
scaper que poct,
si non que il face trespas que escape. |
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But note, that at this day there is no difference
whose Prison the Offender
doth break, whether it be the Kings Prison, the Lord of a Franchise,
or any other person; for the Letter of the Statute is, Prisonam frangentibus,
and not Prisonam nostram: so that whose Prison soever
it be which is
broken, it is within the compass of this Statute, Stamf. 31. |
2 Ed. 3. 1.
Stamf. 31.
d. |
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Also whether it be a common Gaol, or a private Gaol
or Prison, yea or
but the Constables House, or the House of any other person who hath the
custody of him for felony, there is no difference; for these are Prisons
for
the time, and so within both the words and meaning of this Statute. |
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Also by this Statute the breaking of Prison is felony
in the Prisoner
himself. And yet if the Prison shall be on fire by casualty, and
they within
shall break the Prison for saving of themselves; this is no Felony, but
excusable
by the Law of Nature. Plow. fol. 13. b. 14 Hen.
7. 29. Read
15 H. 7. 2. |
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§. 4.
Rescous by
a Stranger. |
And if a Stranger doth break the Prison, or open
the Stocks, or make
a Rescous, whereby one Imprisoned or Arrested for felony escapeth;
this
is felony both in the Prisoner and in the Stranger, although the Prisoner
was never indicted of the felony. |
1 H. 7. 6
1 Ed. 3. 17.
Dyer 99. |
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By some Opinions, if a Stranger shall disturb the
Arresting of a Felon, it
is no felony, except the Felon were taken and Arrested, and after Rescued:
Yet Fitz. Just. P. fol. 114. saith, That such disturbance before
Arrest is
felony. |
9 H. 4. 1.
F. Co. 333.
Stamf. 33.
2. |
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If a Prisoner be rescued at the Gallows, or as he
is going to Execution,
this is a breaking of Prison, and felony within the Statute.
And yet
note this difference: sc. That if a Felon, in going to his
Execution, &c. be
rescued from the Sheriff, this is felony, if it be presented before the
Justices,
&c. and so found by Enquest: but otherwise it is, if it cometh
in
by the Return of the Sheriff, there is no felony. 1 H. 7.
fol. 6. Fitz. Indictment
30. |
1 H. 7. 6. |
| Escape. |
If a Gaoler, a Constable, or any other which hath
a Prisoner under Arrest
for felony, or suspition thereof, voluntarily letteth or suffereth him |
P. R. 147.
149. |
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