himfelf to be taken, but either refifts or flies, fo that he cannot be taken unless he be flain, if B. or any in affistance in that cafe of neceffity kills him, it is no felony; de quo antea, p. 481. If A. commit a felony in the fight of B. and B. ufes not his best endeavours to apprehend him, or to raise hue and cry upon him, it is punishable by fine and imprifonment. Co. P. C. p. 53. If A. ftrike B. dangeroufly in the prefence of C. C. may juftify the imprifoning of A. till he can bring him before a justice, or deliver him to the conftable, tho it be not felony till death. If a hue and cry be levied, upon a felony, and come to the town, B. the conftable, and thofe of the town are bound to apprehend the felon if in the town, or if not in the town, then to follow the hue and cry, otherwise they are punishable upon an indictment. Co. P. C. cap. 52. If the conftable in pursuit of a felon require the aid of 7. S. he is bound by law to affift him, and is finable for his neglect. (q) If a felony be committed in fact, and A. fufpects B. did it, and hath probable cause of suspicion, A. may arrest B. for it, and justify it in an action of falfe imprifonment. 2 E. 4. 8. b. The causes of fufpicion are many, as common fame finding goods upon him, and many more, de quibus vide Dalt. cap. 118. (r) If a felony be committed, and A. fufpects B. and B. being in his house refufe to open the doors, or render himself, it feems A. may break open the doors to take him; and fo may the conftable, if A. acquaint him therewith, efpecially if A. be present, 13 E. 4. 9. a tho (as hath been faid) my lord Coke, 4 Inft. 177. be to the contrary; yet the common practice and opinion hath obtained in that cafe against my lord Coke, Dalt. cap. 98. p. 249. (f), cap. 78. p. 204. (t), 7 E. 3. 16. b. [589] There are Tpecial cafes where a conftable having received informa tion of the misdemeanors following, or any private perfon without a warrant may arrest and break open doors to arrest if they within refufe to open them upon demand, or to deliver up the party. 1. Where a felony or treafon is committed, and the offender is within the house. 13 H. 7. 10. b. (f) New Edit. p. 482. New Edit. cap. 1701 (t) New Edit. p. 426. 2. Where 2, Where a felony or treafon is committed, and a man fufpects 7. S. who is in the house, and hath probable cause of such suspicion. tho the party be not indicted. 7 E. 3.16. b. 13 E. 4. 9. a. 3. Where A. hath dangerously wounded B. and then A. flies into the house, whether it were done in the prefence of the conftable, or him that arrests, or not. 7 E. 3. 16. b. Crompt. 171. a. 4. Where there is an affray made in a house, and the doors are fhut, and are refused to be opened, during fuch affray the constable or any other may break open the doors to preserve the peace, and prevent blood shed; but after the affray, it cannot be done without a warrant, unless a man be dangerously wounded or killed in the affray. Yet to avoid question in these cafes, it is beft to obtain the warrant of a justice, if the time and neceffity will permit. When a private perfon hath arrefted a felon, or one fufpected of felony, he may detain him in custody till he can reasonably dismiss himself of him; but with as much speed as conveniently he can, he may do either of these things. 1. He may carry him to the common gaol, 20 E. 4. 6. b. but that is now rarely done. 2. He may deliver him to the constable of the vill, who may either carry him to the common gaol, vide 4 E. 3. cap. 10. or to a justice of peace to be examined, and farther proceeded against as cafe fhall require. 10 E. 4. (u) 17 b. 3. Or he may carry him immediately to any juftice of peace of the county where he is taken, who upon examination may discharge, bail, or commit him, as the cafe shall require. And the bringing the offender either by the constable or [599] private perfon to a juftice of peace is moft ufual and fafes because a gaoler will expect a Mittimus for his warrant of detaining. And thus far of arrests. See Burn. Edit. 1776. Tit. Arreft. per tot. and 1 Hawk. P. C. ch. 12, 13, 14, and 4 Blackf. Com. ch. xxi. p. 289. ch. xxii. p. 300. &c. Fofter 136, 320. (u) This is the fame year with 49 H. 6. and is so printed in the year-book. CHAP. CHAP. LI. Of felony by voluntary escapes, and touching felony by escapes of felons. AVING in the former chapter faid fomewhat of arrefts, it re HAV mains that fomewhat be faid touching those felonies that relate to the efcape of perfons arrested or imprisoned. And these escapes are of three kinds, 1. By the person that hath the felon in his cuftody, and this is properly an escape; and 2. When the escape is caused by a stranger, and this is ordinarily called a rescue of a felon. 3. By the party himself, which is of two kinds. viz. 1. Without any act of force, and this is a fimple escape. 2. With an act of force, viz. by breach of prison. As to the firft, touching an escape fuffered by the person that hath a felon in cuftody, which is properly an escape; and this is of two kinds, voluntary and negligent. And first concerning the voluntary escape. A voluntary escape is when any perfon having a felon lawfully in his cuftody voluntarily permits him to escape from it, or go at large, and this is felony in cafe the perfon be imprifoned for felony, and treason in cafe the perfon be imprisoned for treason; for the latter enough hath been faid before; touching the former in this place. [591] And altho Mr. Stamford. Lib. I. cap. 26, 27, 28, 29, 30, 31. hath collected almost all that can be well faid in this cafe, yet I fhall proceed diftinctly herein. And therein I fhall as near as I can obferve this order. 1. I fhall confider who fhall be faid a felon, whofe escape makes a felony in him that voluntarily fuffers it. 2. What fhail be faid a having of fuch a felon in his cuftody. 3. Who fhall be faid a perfon lawfully having fuch a felon in his cuftody. 4. What fhall be faid a voluntary escape of fuch a felon out of his cuftody. 5. Who fhall be faid voluntarily to fuffer fuch a felon to escape. 6. What is the offente of such a voluntary permiffion of an escape, and where, and how punishable. VOL. 1. LI And And tho I apply these particulars to a voluntary escape, yet many of them are applicable unto, and useful for the learning of a negligent efcape. I. Who fhall be faid a felon, whose voluntary escape is felony in him that fo permits it. If A. gives B. a mortal wound, and before B. dies the conftable takes A. into custody, either with or without a juftice's warrant, and then lets him voluntarily efcape before B. is dead, and then B. dies tho as between A. and B. or A. and the king, this is a felony from the stroke given, and the attainder of A. as to the forfeiture of his lands relates to the stroke; yet this is no felony, in the conftable, but only a misdemeanor punishable by fine and imprisonment. 11 H. 4. 12 b. Plowd. Com. 258. b. If A. be indicted for felony, and taken by Capias, or by the warrant of a juftice, or by the constable &c. and committed to prison, and he gaoler fuffers A. to escape voluntarily, this is the escape of a felon, tho A. be not attainted at the time of the efcape, but the gaoler fhall not be arraigned thereupon till after the attainder of A. de quo infra. If a felony be in fact committed, and the conftable takes A. upon fufpicion of felony, and after voluntarily fuffers him to go at large, tho A be not then indicted, yet this is a felonious escape in the conftable, tho 42 Affiz. 5. be otherwife (a), yet 44 Affiz. 12. Dy. 99. a. 43 E. 3. 36. a. accord. (b) [592] And altho the conftable be well affured after the arrest by him made, that A. was not the perfon that did it, yet he may not by the law discharge him, but must bring him before a justice, who may upon due circumftances difcharge, bail, or commit him, as he fees caufe; but the conftable, if he discharges him, is finable. But if the conflable after the arreft finds certainly, that there was no felony committed, it is held he may discharge him both without danger of felony, (which is true,) and without any danger of fine and imprisonment, 13 H. 7. Kelw. 34. a. b. but then it is at his peril, (a) That was the cafe of a negligent (not a voluntarily) efcape, and for that reafon could not be felony, tho it is there given as a reafon, why it fhould not be adjudged an efcape, because the thief was not taken with the mainouvre, nor at the fuit of the party, nor indicted of felony. (b) This cafe is plainly the fame with 44 Affiz. 12. and feems to be the cafe of a voluntary escape; it does not report any re folution of the court, but only fays, that the bailiffs who let the thief go, altho he were not indicted, were charged with an efcape; and a quaere is added at the end of the cafe and as to the cafe in Dyer, that was not the cafe of the perfon arresting let ting the thief go, but of a third perion's refcuing him, and that is faid to be felony, altho he was not indicted. See 1 E. 3 16. b. 1 if in truth there were a felony committed, and the party be guilty; If A. be committed for petit larciny, and so it appears by the charge So if a man be originally committed for manslaughter per infortu nium or fe defendendo, or were convict only fe defendendo or per infortunium, and afterwards the gaoler fuffers him voluntarily to escape, it is no felony; but if the commitment or indictment were for manflaughter, tho in truth it were but fe defendendo, yet primá facie a voluntary escape is indictable as felony, tho in eventu it may fall out otherwife; de quo infra. [593] If A. be indicted of murder for the death of B. and pardoned or acquitted within the year, but left in gaol till the year be elapfed, upon the ftatute of 3 H. 7. cap. 1. that the wife may bring her appeal if she pleases, and after that acquittal, and within the year, the gaoler fuffers him voluntarily to efcape, it is felony prima facie, and the gaoler may be indicted for it as felony; but if the wife brings not her appeal within the year, or bringing her appeal A. is acquitted, the gaoler ought to be acquitted: vide infra, Plowd. Com. 476. b. If A. commits felony, and being convicted prays his clergy and the court take time to advise upon it till another feffions, and in the mean time he is left in gaol. as he ought to be, and the gaoler voluntarily fuffer him to make his escape, this is felony in the gaoler, for fuch a prifoner stands yet under a conviction of felony, and therefore is not. by law bailable; but if the felon be retaken, and hath his clergy, the felony in the escape is purged, and the gaoler is not indictable after, or if indicted before the clergy allowed, he is to be acquitted. If A. be indicted of felony, and hath his clergy, but is continued for fix months in cuftody for his farther correction, according to the power given by the ftatute of 18 Eliz. cap. 7. and the gaoler fuffers him to escape voluntarily, it is a misdemeanor punishable by fine and imprisonment, but no felony. If a man be delivered to the ordinary as a clerk convict upon his own confeffion, or as a clerk attaint, in which cafes he ought not to |