¶1The respondent is indicted for breaking jail and letting himself out, and for aiding others to break open the jail that he might escape. To the indictment there is a demurrer, and thus the question arises whether it is an offence under our statute, Comp. Stat., C. 106, sec. 11, for a prisoner confined alone in jail to break it open that lie may escape.
¶2The words of the statute are, “every person who shall break open any jail,” etc. There is no exception on behalf of the prisoner confined in the jail. Nor can any exception be fairly implied from the language of the act. It includes both those who from the outside and from the inside commit the criminal act.
¶3Nor do the words “break open,” imply, as is claimed in argument, that those who are to commit the offence, must be on the outside.
¶4It has been held at nisi' prius so frequently and generally that it must be considered as the settled rule, that where a prisoner breaks open or aids in breaking open a jail so that others escape, he is an offender within this statute. The same has been held in New York under a similar statute; 12 Johns. 339. •
¶5*429In this State, when the prisoner who breaks jail is confined alone, so that nobody but himself can escape, the rulings in the county court have been conflicting.
¶6It has been urged that the natural instinct to escape from prison is so strong that it could not have been intended to make the yielding to if a criminal offence. But we think this is a tenderness to the imprisoned which is not consonant with good sense, or the spirit of our laws for the prosecution of crime, or with justice, It is more than fair dealing and justice require.
¶7The indictment is therefore held suificienl, but as the respondent asks leave to plead and to have a trial, a repleader is granted.