Commonwealth v. Barker

Devens, J. The imprisonment of the defendant was certainly lawful, as he was surrendered by his bail to the keeper of the jail, and a copy of the bail bond lodged with him. Gen. Sts. c. 125, § 15. But although within the words of the statute (Gen. Sts. c. 178, § 46), which prescribe a punishment for every one who, “ lawfully imprisoned in any place of confinement established by law, other than the state prison, breaks therefrom and escapes,” he contends that he is not within its meaning and intent. He argues, that, as the jails of the Commonwealth are to be used only for the confinement of certain persons “committed” for various causes enumerated (which would not include the defendant), and “of all other persons committed for any cause authorized by law” (Gen. Sts. c. 178, § 1), the word “ committed ” is to be taken as having a technical meaning, and necessarily implies a warrant or order by a court or magistrate directing a ministerial officer to take a person to prison; and that the offence of breaking jail can only be committed'by those properly thus described, for it is only as to them that the jail is a lawful place of confinement. An examination of the statute on the subject of bail (Gen. Sts. c. 125) shows that the surrender by his bail of a person who has been arrested on civil process is there spoken of as a “ commitment,” and he himself as a “prisoner” who has been “committed.” Thus, by § 16, a copy of the bail bond is required to 401 be deposited with the jailer, which protects him, “-although the surrender and commitment prove to be unlawful on the part of the bail.” By § 18 of the same chapter, the bail are required to give “ notice in writing to the plaintiff or his attorney, of the time when and the place where the prisoner was so committed.” Nor is the proceeding by which a prisoner is surrendered upon civil process without an instrument which fulfils the office of a warrant. When one becomes bail, he is entitled forthwith to an attested copy of the bail bond, upon which, he may seize and take his prisoner whenever he will; and this is his warrant, as well as that of the jailer, when the surrender is made to him. Jones v. Varney, 8 Cush. 137. The defendant was therefore a person committed to jail for a cause authorized by law. It is further urged, that the forcible breaking from jail of a person confined therein on mesne process was not an offence at common law; and that therefore it cannot have been intended to constitute it an offence against the statute under which this indictment is drawn. We are by no means prepared to assent to the proposition that breaking jail, by one confined on mesne process, was not an offence at common law. 1 Hale P. C. 608. 2 Hawk. P. C. e. 17, § 5, and e. 18, § 1. 2 Inst. 589. Whart. Crim. Law (8th ed.) § 1673. State v. Murray, 15 Maine, 100. However this may be, the generality of the phrase “ lawfully imprisoned ” indicates clearly the intention to punish every violation of custody by those who are properly held in any place of confinement established by law other than the state prison. Breaking jail and an escape therefrom, even by a prisoner confined therein on mesne process, could not be otherwise than an outrage to its discipline, and a resistance to the lawful authority by which he was detained. Exceptions overruled.