State v. Doud

Peters, J. By the common law, all immoral acts, which tend to the prejudice of the community, are offences, and punishable by courts of justice. They are denominated crimes and misdemeanours. The former comprehend the more aggravated offences, which are nearly allied and equal in guilt to felony, whereof the superior court formerly assumed jurisdiction ; the latter, inferior offences, whéreof the superior and inferior courts have occcasionally taken cognizance. But now, by statute, the superior court alone has jurisdiction of all offen-ces at common law. Stat. 29. ed. 1784.—172. ed. 1821.—191. Sess. 1828. Knowles v. State, 3 Day 103. 2 Swift’s Syst. 366. 2 Swift’s Dig. 257. State v. Howard, 6 Conn. Rep. 475. Rex v. Higgins, 2 East 5. By the ancient common law, prison-breaches were felonies, [387] if the party were lawfully imprisoned, for any cause whatever, whether civil or criminal, and whether he were actually within the walls of a prison, or only in the stocks, or in the custody of a person who had lawfully arrested him. 2 Hawk. P. C. c. 18. s. 1. And it hath been holden, by all the judges of the King’s Bench, that though a prisoner departs from prison, with the keeper’s licence, it is an offence punishable as well in the prisoner as in the keeper. Hobert and Stroud’s case, Cro. Car. 209. The same doctrine is laid down, by Sir William Blackstmie ; (4 Com. 129.) and it is sanctioned by the late Ch. J. Swift. 2 Sw. Dig. 325. The escape of a person lawfully arrested, by eluding the vigilance of his keepers, before he is put in hold or in prison, is an offenee against public justice ; and the party himself is punishable by fine and imprisonment. For however strong the natural desire of liberty may be, yet every man is bound to submit himself to the restraints of the law. 2 Sw. Dig. 325. 4 Bla. Com. 129. I am, therefore, of opinion, that the information is sufficient; and as the prisoner is not charged with breaking the prison, or any other actual violence, in effecting his escape, I advise, that he be subjected to the usual common law punishment, fine and imprisonment, one or both, at the discretion of the superior court, not exceeding the punishment from which he escaped. The other Judges were of the same opinion, Wiiuams, J. intimating some doubts. Information sufficient.