ESCAPE. The deliverance of a person who is lawfully imprisoned, out of prison, before such a person is entitled to such deli verance by law. 5 Mass. 310.
The voluntarily or negligently allowing any person lawfully in confinement to leave the place. 2 Bishop, Crim. Law, 0 917.
Departure of a prisoner from custody before he is discharged by due process of law.
Escape takes place without force ; prison-breach, with violence ; rescue, through the intervention of third parties.
Actual escapes are those which take place when the prisoner in fact gets out of prison and unlawfully regains his liberty.
Constructive escapes take place when the prisoner obtains more liberty than the law allows, although he still remains in confine ment. Bacon, Abr. Escape (B); Plowd, 17 ; 5 Mass. 310 ; 2 Mas. C. C. 486.
Negligent escape takes place when ,the pri soner goes at large, unlawfully, either because the building or prison in which he is confined is too weak to hold him, or because the keeper by carelessness lets him go out of prison.
Voluntary escape takes place when the pri soner has given to him voluntarily any liberty not authorized by law. 5 Mass. 310 ; 2 N. Chipm. Vt. 11.
2. When a man is imprisoned in a proper place under the process of a court having jurisdiction in the case, he is lawfully Boned, notwithstanding the proceedings may be irregular, 1 Crawf. & D. Cr. Cas. 203; but if the court has not jurisdictiun the impri sonment is unlawful, whether the process be regular or otherwise. Bacon. Ahr. Escape in Civil Cases (A 1); Johns. N. Y. 89 ; 13 id. 378; 1 C oir. N. Y. 309 ; 8 id. 192 ; 1 Root, Conn. 288.
Letting a prisoner, confined under final pro cess, out of prison for any even the shortest time, is an escape, although he afterwards return, 2 W. Blackst. 1048 ; 1 Rolle, Abr. 806 ;
and this may be (as in the case of imprison ment under a ca. sa.) although an officer may accompany him. 3 Coke, 44 a; Plowd. 37 ; Hob. 202 ; 1 Bos. & P. 24; 2 W. Blackst. 1048.
3. In criminal cases, the prisoner is indict able for a misdemeanor, whether the escape be negligee or voluntary, 2 Hawkins, Pl. Cr. Cumm. ed. 189; Croke Car. 209'; 7 Conn. 384; 16 id. 47 ; and the officer is also indictable. 2 Bishop, Crim. Law, 0 924. If the offence of the prisoner was a felony, a voluntary es cape is a felony on the part of the officer, 2 Hawkins, Pl. Cr. c. 19, 25 ; if negligent, it is a misdemeanor only in any case. 2 Bishop. Crim. Law, 0 925. It is the duty of the officer to rearrest after an escape. 6 Hill, N. Y. 344.
4. In civil cases, a prisoner may be arrested who escapes from custody on mesne process, and the officer will not be liable if he rearrest him, Croke Jac. 419; but if the escape be voluntary from imprisonment on mesne pro cess, and in any case if the escape be from final process, the officer is liable in damages to the plaintiff, and is not excused by retaking the prisoner. 2 Term, 172 ; 2 Barnew. & Ald. 56. Nothing but an act of God or the ene mies of the country will excuse an escape. 24 Wend. N. Y. 381; 2 Murpli. So. C. 386 ; 1 Brev. So. C. 146. See 5 Ired. No. C. 702 ; 5 Watts & S. Penn. 455 ; 17 Wend. N. Y. 543.