An escape is tho deliverance of a person who is lawfully imprisoned, out of prison, before such a person is entitled to such deliverance by law. 5 Mass. 310.
2. It will be proper to consider, first, what is a lawful imprisonment; and, secondly, the different kinds of escapes.
3. When a man is imprisoned in a proper place under the process of a court having jurisdiction in the case, he is lawfully imprisoned, notwithstanding the proceedings may be irregular; but if the court has not jurisdiction the imprisonment is unlawful, whether the process be regular or otherwise. Bac. Ab. Escape. in civil cases, A 1; 13 John. 378; 5 John. 89; 1 Cowen, 309 8 Cowen, 192; 1 Root
, R. 288.
4. Escapes are divided into voluntary and negligent; actual or constructive; civil and criminal and escapes on mesne process and execution.
5. - 1. A voluntary escape
is the giving to a prisoner, voluntarily, any liberty not authorized by law. 5 Mass . 310; 2 Chipm. 11. Letting a prisoner confined under final process
, out of prison for any, even the shortest time, is an escape, although he afterwards return; 2 Bl. Rep. 1048; 1 Roll. Ab. 806; and this may be, (as in the case of imprisonment under a ca. sa.) although an officer may accompany him. 3 Co. 44 a Plowd. 37; Hob. 202; 1 Bos. & Pull
. 24 2 Bl. Rep. 1048.
6. The effect of a voluntary escape in a civil case, when the prisoner is confined under final process, is to discharge the debtor, so that he cannot be retaken by the sheriff; but he may be again arrested if he was confined only on mesne process. 2 T. R. 172; 2 Barn. & A. 56. And the plaintiff may retake the prisoner in either case. In a criminal case
, on the contrary, the officer not only has a right to recapture
his prisoner, but it is his duty to do so. 6 Hill, 344; Bac. Ab. Escape in civil cases, C.
7. - 2. A negligent escape
takes place when the prisoner 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.
8. The consequences of a negligent escape are not so favorable to the prisoner confined under final process, as they are when the escape is voluntary, because in this case, the prisoner is to blame. He may therefore be retaken.
9. - 3. The escape is actual, when the prisoner in fact gets out of prison and unlawfully regains his liberty.
10. - 4. A constructive escape takes place when the prisoner obtains more liberty than the law allows, although he still remains in confinement The following cases are examples of such escapes: When a man marries his prisoner. Plowd. 17; Bac. Ab. Escape, B 3. If an underkeeper be taken in execution, and delivered at the prison, and neither the sheriff nor any authorized person
be there to receive him. 5 Mass. 310. And when the keeper of a prison made one of the prisoners confined for a debt a turnkey, and trusted him with the keys, it was held that this was a constructive escape. 2 Mason, 486.
11. Escapes in civil cases are, when the prisoner is charged in execution or on mesne process for a debt or duty, and not for a criminal offence
, and he unlawfully gains his liberty. In this case, we have seen, the prisoner may be retaken, if the escape have not been voluntary; and that he may be retaken by the plaintiff when the escape has taken place without his fault, whether the defendant be confined in execution or not; and that the sheriff may retake the prisoner, who has been liberated by him, when he was not confined on final process.
12. Escapes in criminal cases take place when a person lawfully in prison, charged with a crime or under sentence, regains his liberty unlawfully. The prisoner being to blame for not submitting to the law, and in effecting his escape, may be retaken whether the escape was voluntary or not. And he may be indicted, fined and imprisoned for so escaping. See Prison.
13. Escape on mesne process is where the prisoner is not confined on final process, but on some other process issued in the course of the proceedings, and unlawfully obtains his liberty, such escape does not make the officer liable, provided that on the return day
of the writ, the prisoner is forthcoming
14. Escape on final process is when the prisoner obtains his liberty unlawfully while lawfully confined, and under an execution or other final decree
. The officer is then, in general, liable to the plaintiff for the amount of the debt.