45 S.C.L. 60 | S.C. Ct. App. | 1857
Lead Opinion
The opinion of the Court was delivered by
I concur fully in the ruling of the judge below. The defendant had neither the body nor the bail bond of the defendant at the return term of the writ. Cook vs. Irving, 4 Strob. 204. This was an escape: and that it was voluntary, was conclusively shown by the fact, that the prisoner was out of his custody by his assent. When these facts were proved, it was the duty of the judge to tell the jury, as he did, that it was a voluntary escape. If he had left the facts to the jury, and they had found, as for- a negligent escape, we would have set the verdict aside on the motion of the plaintiff, as palpably against the evidence. I therefore conclude, that the defendant can take nothing by his motion; which is dismissed.
Motion dismissed.
Dissenting Opinion
dissenting. I cannot overcome tbe impression tbat tbe idea of assent or connivance is necessarily involved in tbe complex idea of voluntary escape: and tbe assent or connivance, it seems to me, must be not to tbe mere enlargement of tbe prisoner, but to bis unlawful enlargement. Did tbe defendant know tbat tbe bond wbicb be received was forged? Perhaps bis.negligence was so great tbat bis knowledge, or something equivalent to it, might have been discovered in evidence of all tbe circumstances. But I distinguish between ignorance of law and ignorance of fact, and I think it should have been left to tbe jury to decide tbe question whether tbe escape was voluntary. No fixed rule or general principle enabled a judge himself to draw from the evidence of tbe circumstances, tbe ultimate conclusion on this question of fact.
Motion dismissed.
