| Chap. 159. |
Felonies by Statute.
her Appeal against Nichols, he was still detained in Prison as
the Womans
Suit: after the Gaoler suffered Nichols voluntarily to go
at large and so
to escape. By the opinion of M. Plowden this was felony in
the Gaoler,
although N. the Prisoner were now no Felon to the Queen, in regard
he
had obtained his Pardon. Plow. 476. b. |
381 |
P. Co. 430,
& 431.
P. R. 150. |
A Prisoner found guilty of Petty Larceny is adjudged
to be imprisoned
by the space of a month, (for the punishment) and after the month he
breaketh Prison, and escapeth: quære what this is in
the Prisoner, and
what in the Gaoler, it is holden that the Gaoler shall be charged with
this
escape. But if the Prisoner be discharged (by Judgment) paying his Fees
if he escape, here the Gaoler is not chargeable. The difference is
the
Prisoner in the first case was by Judgment committed to prison. And
in the
last case he is adjudged to be acquit of his Imprisonment, paying, and
yet he is a Prisoner until he hath paid his Fees. 21 H. 7.
17. Br. escape
16. Plow. 465. |
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11 H. 4. 12.
Plow. 258.
263 & 401.
Br. Esc. 17. |
Note, that a voluntary escape is no Felony, if the
act done were not
felony at the time of the escape made. As if A. do strike
B. and it hurt him
mortally, whereupon the Constables do arrest A. and willingly suffer
him to escape, and after B. dieth of that stroke: this escape
on a felony;
either in the Constable or in the Prisoner, yet the Constable shall make
a great Fine, yea, shall (or may at the discretion of the Judges) be fined
to
the value of their Goods (as it seemeth) by 11 H. 4. 12, and Stamf.
25. b.
because his escape was voluntary. |
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' If a Man be wounded, and the percussor involuntarily
let go at large
' by the Gaoler, and after death ensueth of and hurt; yea, this is no felonious
' escape in the Gaoler, 11 H. 4. 12. Br. 38. |
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| Crom. 39. |
The voluntary suffering him to escape who hath klilled
another, se defendendo,
or by misadventure, or of him that hath committed Petty Larceny,
seemeth not to be felony; for that these Offences are no felony of
Death; but he that suffereth such an escape shall be fined only, Cromp.
39.
Yet Quære, for they that suffered this escape, are not to
judge whether
these Offences be felony or no. See hereof postea tit. evidence
against
Felons. |
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A Man was taken for suspition of felony, and was
delivered to the Constable
of G. and after escaped for want of good keeping, and the Constable
was therefore taken and arraigned; and pleaded, That forasmuch as
the Felon was not taken with the manner, nor at the Suit of the party,
nor
indicted of felony, therefore it was no escape, &c. And so was
the Opinion
of the Court then, See 42 Ass. P. 5. Br. Escape 39. |
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But the contrary was after holden in case where
the escape was voluntary,
although the Prisoner were taken only upon suspition, 44 Ass. p. 12.
Br. Escape 31. & Dyer 99. that is felony, although the
Prisoner were not
indicted of felony. |
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4 Ed. 104.
P. Escape 2.
Stamf. 35. |
Note also, where one is a Prisoner by Arrest only
and he doth escape,
there the escape shall be presented before the Justices of Peace, or other
Justices having Authority to enquire of the escape, before he that suffered
the escape shall answer it, sc. before any thing shall be taken
or levied by
the Sheriff or other Officer. Vide Co. 11. 64, 65. & Stat.
Westm. 1 cap. 4. |
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11 H. 7. 7
Cromp. 40.
P. R. 151,
152.
Cro. 34. |
Note also, if a Man be arrested for suspition of
felony by the Constable
or other person, and after they shall have intelligence that there was
no such
felony committed, here they may set the party arrested at liberty again,
and they shall not be charged with the escape; for there can be no Felon
where there is no felony committed. |
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