¶1 (after stating the facts): Section 1022 of The Code, in relation to the offence above referred to, provides that “in all such cases it shall be sufficient, in support of the indictment against such Sheriff or other officer, to prove that such person so charged or sentenced was committed to his custody, and it shall lie upon the defendant to show that such escape was not by his consent or negligence, but that he had used all legal means to prevent the same, and acted with proper care and diligence.”
¶2 The defendant undertook the burden of showing that the escape was not by his consent or negligence. The rule is laid down in State v. Johnson, 94 N. C., 924. “It is not necessary to prove negligence in one who has the lawful custody of the prisoner, for it is implied, and is excusable only when occasioned by the act of God or irresistible adverse force.”
¶3 The defendant set up his sickness, which, if believed by the jury, was a sufficient excuse for his personal failure to prevent the escape, and the only question, as stated by his Honor, was whether he had exercised due care in the employment of his assistant. It was properly left to the jury, accompanied with the repeated instructions of his Honor.
¶4 There is No Error.