PRISON BREAKING, or BREACH. The act by which a prisoner, by force and vio lence, escapes from a place where he is law fully in custody. This is an offence at com mon law. This offence is to- be distinguished from rescue (q. v.), which is a deliverance of a prisoner from lawful custody by a third person. 2 Bish. Cr. L. § 1065.
To constitute this offence there must be —a lawful commitment of the prisoner on criminal process ; Co. 2d Inst. 589 ; 1 Carr. & M. 295 ; Com. v. Miller, 2 Ashm. (Pa.) 61; see In re Edwards, 43 N. J. L. 555, 39 Am. Rep. 610; an actual breach with force and violence of the prison, by the prisoner him self, or by others with his privity and pro curement; Russ. & R. 458 ; the prisoner must escape; g Hawk. Pl. Cr. c. 18, s. 12. I Hale, Pl. Cr. 607; 4 Bla. Corn. 130; Co. 2d Inst. 500; People v. Duell, 3 Johns. (N. Y.) 449; Coro. v. Briggs, 5 Metc. (Mass.) 559.
A convict who has been made a "trusty" and was not confined within the prison walls is guilty of an escape if he leaves the state; Jenks v. State, 63 Ark. 312, 39 S. W. 361;
and so is one who flees from the custody of a jailer while being worked on a highway; Saylor v. Com., 122 Ky. 776, 93 S. W. 48; Johnson v. State, 122 Ga. 172, 50 S. E. 65; contra, State v. King, 114 Ia. 413, 87 N. W.
282, 54 L. R. A. 853, 89 Am. St. Rep. 371, where it was held that a convict who had concealed himself in a crevice of rock in a quarry, and thereby escaped, was not guilty of breaking prison because no force was used. One may be guilty of escape after sen tence and before commitment ; Corn. v. Briggs, 5 Mete. (Mass.) 559. It is no de fense to a prosecution for escape if the de fendant left a chain-gang to avoid unmerited punishment ; Johnson v. State, 122 Ga. 172, 50 S. E. 65. A sheriff is not excused for a negligent escape by merely using care in keeping the prisoner ; State v. Mullen, 50 Ind. 598.
See BREACH OF PRISON ; ESCAPE.