Prison Breaking

or BREACH. The act by which a prisoner, by force and violence, escapes from a place where he is lawfully in custody. This is an offence at common law. This offence is to be distinguished from rescue (g. v.) f which is a deliverance of a prisoner from lawful custody by a third person.

2 Bish. Cr. L. § 1065.

To constitute this offence there must be — a lawful commitment of the prisoner on criminal process; Co. 2d Inst. 589; 1 Carr. & M. 295; Com. v. Miller, 2 Asbin. (Pa.) 61; see In re Edwards, 43 N. J. L. 555, 39 Am. Rep. 610; an actual breach with force and violence of the prison, by the prisoner himself, or by others with his privity and procurement; Russ. & R. 458; the prisoner must escape; 2 Hawk. PI. Cr. c.

18, s. 12. See 1 Hale, PI. Cr. 607; 4 Bla. Com. 130; Co. 2d Inst. 500; People v. Duell, 3 Johns. (N. Y.) 449; Com. v. Briggs, 5 Mete. (Mass.) 559.

A convict who has been made a “trusty” and was not confined within the prison walls is guilty of an escape if he leaves the state; Jenks v. State, 63 Ark. 312, 39 S. W. 361; and so is one who flees from the custody of a jailer while being worked on a highway; Saylor v. Com., 122 Ky. 776, 93 S. W. 48; 282, 54 L. R. A. 853, 89 Am. St. Rep. 371, where it was held that a convict who had concealed himself in a crevice of rock in a quarry, and thereby escaped, was not guilty of breaking prison because no force was used. One may be guilty of escape after sentence and before commitment; Com. v. Briggs, 5 Mete. (Mass.) 559. It is no defense to a prosecution for escape if the defendant left a chain-gang to avoid unmerited punishment; Johnson v. State, 122 Ga. 172, 50 S. E. 65. A sheriff is not excused for a negligent escape by merely using care in keeping the prisoner; State v. Mullen, 50 Ind. 598. See Breach op Prison; Escape.