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ESCAPE. The deliverance of a person who is lawfully imprisoned, out of prison, before such a person is entitled to such de liverance by law. Colby v. Sampson, 5 Mass. 310.

The voluntarily or negligently allowing any person lawfully in confinement to leave the place. 2 Bish. Cr. L. § 917.

Departure of a prisoner from custody be fore 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. Bac. Abr. Escape (B); Plowd. 17; Colby v. Sampson, 5 Mass. 310; Steere v. Field, 2 Mas. 486, Fed. Cas. No. 13,350.

Negligent escape takes place when the pris oner goes at large, unlawfully, either be cause 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 prisoner has given to him voluntarily any liberty not authorized by law. Colby v. Sampson, 5 Mass. 310; Lowry v. Barney, 2 D. Chip. (Vt.) 11.

When a man is imprisoned in a proper place under the process of a court having jurisdiction in the case, he is lawfully im prisoned, notwithstanding the proceedings may be irregular ; 1 Crawf. & D. 203; see Com. v. Barker, 133 Mass. 399; but if the court has not jurisdiction the imprisonment is unlawful, whether the process be regular or otherwise. Bacon, Abr. Escape in Civil Cases (A 1) ; Scott v. Shaw, 13 Johns. (N. Y.) 378; Ontario Bank v. Hallett, 8 Cow. (N. Y.) 192; Austin v. Fitch, 1 Root (Conn.) 288. See State v. Leach, 7 Conn. 452, 18 Am. Dec. 113.

Letting a prisoner, confined under final process, out of prison for any, even the shortest, time, is an escape, although he aft erwards return; 2 W. Bla. 1048; Browning's Ex'r v. Rittenhouse, 40 N. J. L. 230; Servis v. Marsh, 38 Fed. 794; De Grand v. Hunne well, 11 Mass. 160; and this may be (as in the case of imprisonment under a ca. sa.) although an officer may accompany him ; 3 Co. 44 a; 1 B. & P. 24. Where an insolvent debtor whose discharge has been refused by he court, surrenders himself to the keeper of a prison, who will not receive him because he has no writ or record showing that he is an insolvent debtor and is npt in charge of an officer, the surrender is not sufficient to make the keeper liable for the debt in case of the debtor's escape; Saunders v. Perkins,

140 Pa. 102, 21 Atl. 257.

In criminal cases, the prisoner is indicta ble for a misdemeanor, whether the escape be negligent or voluntary ; 2 Hawk. Pl. C. 189; Cro. Car. 209; State v. Doud, 7 Conn. 384; State v. Brown, 82 N. C. 585; and the officer is also indictable; Martin v. State, 32 Ark. 124; State v. Ritchie, 107 N. C. 857, 12 S. E. 251. If the offence of the prisoner was a felony, a voluntary escape is a felony on the part of the officer ; 2 Hawk. Pl. C. c. 19, § 25; if negligent, it is a misdemeanor only in any case; 2 Bish. Cr. L. § 925. See State v. Sparks, 78 Ind. 166. It is the duty of the officer to rearrest after an escape; Clark v. Cleveland, 6 Hill (N. Y.) 344; People v. Hanchett, 111 Ill. 90; 1 Russ. Cr. 572.

In civil cases, a prisoner may be arrested who escapes from custody on mesne pro cess, and the officer will not be liable if he rearrest him; Cro. Jac. 419; but if the es cape be voluntary from imprisonment on mesne process, 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 B. & A. 56; Doane v. Baker, 6 Allen (Mass.) 260. Noth ing but an act of God or the enemies of the country will excuse an escape. Fairchild v. Case, 24 Wend. (N. Y.) 381; Rainey's Ex'rs v. Dunning, 6 N. C. 386; Shattuck v. State, 51 Miss. 575. See Lash v. Ziglar, 27 N. C. 702; Shuler v. Garrison, 5 W. & S. (Pa.) 455.

Attempts to escape by one accused of crime are presumptive of guilt, and the con duct of a defendant in arrest, either before or after being accused of the crime, may be competent evidence against him, as indicat ing a guilty mind ; Bowles v. State, 58 Ala. 335; People v. Stanley, 47 Cal. 113, 17 Am. Rep. 401. 'Where a prisoner being in the cor ridor of a jail unlocks a door between the corridor and a cell, and thence escapes, he commits prison breach; Randall v. State, 53 N. J. L. 488, 22 Atl. 46. An unsuccessful at tempt at prison breach is indictable; People v. Rose, 12 Johns. (N. Y.) 339.

On an escape and recapture, the party has a day in court to deny his identity as the person sentenced ; Com. v. Hill, 185 Pa. 397, 39 Atl. 1055.

See Whart. Cr. L. § 1667; 26 Am. L. Reg. 345; PLIGHT ; PRISONER.