| N.Y. Sup. Ct. | May 15, 1820
delivered the opinion of the Court. There is no doubt that after the defendant is taken in execution, if he is seen at large, without the liberties of the gaol, for ever so short a time, as well before as after the return of the writ, it is an escape in the sheriff. The sheriff, however, may protect himself from the consequences by a fresh pursuit and recaption, or by the voluntary return of the prisoner before action brought. The writ of Habeas Corpus, in this case, justified the defendant for conveying Herrick to New York ; and it is very evident that there was no unnecessary delay in bringing him back to Poughkeep-sie. There is no weight in the suggestion that the Habeas Corpus was taken out collusively; but if it was, the sheriff was no party to the collusion. He was bound to obey the writ. (5 Johns. Rep. 357.) The only point to be decided is, whether permitting Herrick to be separated from Brush, the special deputy, without any permission on the part of the deputy, was an escape. The original object of the common law'in subjecting debtors to close imprisonment on
But the question recurs, what kind of indulgence to a prisoner, in the sheriff’s custody, on a ca. sa., and who is .directed to be brought before a court to testify under a ha-beas corpus, will subject the sheriff to an action for an escape? I am satisfied, that the indulgence proved to have, taken place in this case, does not constitute an escape.
The earliest case upon this subject is Boston’s. (3 Coke's Rep. 43.) It was resolved by the Court, that there was a difference between the custody of one in execution, within the county where the common gaol is, and where the sheriff hath the custody of one in execution out of the county ; and it was adjudged, that where the sheriff hath one in execution for a debt, and a habeas corpus issues to have the body in the King’s Bench, at a certain day; by force of which writ, the sheriff, before the return of the writ, brings his body to an inn in Smithfield, toward Westminster, and the prisoner, of his own head, goes without any keeper, to South-wark, and the next morning comes again to the sheriff, to Smithfield, and at the return of the habeas corpus, the sheriff delivers his body in Court, this was no escape; and they referred to Charnock’s case, (31 Eliz.) and observed, that it stood with great reason; for the sheriff may more sfrongly guard' his gaol, than every inn or other place through which he travels. Bacon (title Escape, B.) mentions this case as law. In the case of Moredell v. the Marshal of the King’s Bench, (1 Mod. 116.) which was debt for-the escape of one Reynolds, the defendant gave iq evidence an habeas corpus ad testificandum, and it appeared that the prisoner went down too long before hand, and staid too long after the assizes were done at Wells, and that he went back three score miles beyond Wells, beforb he returned again to London.
In Trinity Term, 12 Ch. I. (Cro. Car. 466.) at a meeting of the justices and barons of the exchequer, Brampton, Ch. Justice, published, that the prisoners of the King’s Bench and Fleet, had petitioned the king, for avoiding the plague, that they who could give sufficient security to be true prisoners, and to return at the days prescribed, might go at large on habeas corpus for that time. 'All the justices and barons present having consulted, resolved that a habeas corpus was a good and legal writ, but under colour thereof, the wardens and marshal ought not to suffer prisoners to go at large; that it was an abuse of the writ, and an escape. In Holdroid v. Liddel, (1 L. Ray, 241.) Powell, Justice, said, if a habeas corpus is delivered to a sheriff, in July, to bring a man in execution to the Common Pl.eas next Michaelmas term, the sheriff may take a reasonable time, of which the Court would judge; but he cannot bring him out of prison, and keep him out all the vacation ; but Treby, Ch. Justice, said, he would not determine that point.
Dalton (Sheriff, 141.) lays down the law to be, that on a habeas corpus, if the prisoner, of his own head, goeth at large, and afterwards return to the sheriff, it has been adjudged not to be an escape.
It appears to me to be well settled, and I haye met with no decision to the contrary, that if a sheriff, in yielding obedience to a habeas corpus, necessarily takes the prisoner out of his county, and returns with him when the exigency of the writ is answered, without unnecessary delay, that he is not guilty of an escape, if the prisoner of his own head should stroll about, and sometimes be out of the sheriff’s view. Indeed, I am by no means satisfied, that if the sheriff should permit him to go out of his sight, whilst he has him under the habeas corpus, provided always there was no unreasonable delay in returning him to prison, that even such
If Brush had gone about with Herrick on the business of the latter, whilst they were in New York, I presume it would not have been contended that it would have been an escape ; and it makes no difference whether Brush was present or not. Boyton’s case, which has never been overruled, is, however, decisive; and the other cases all go in confirmation of it. The case from 1 Mod. Rep. 116. was decided on the principle, that the sheriff had let the prisoner go back three score miles, which delayed improperly his return to gaol. . We are of opinion that the defendant is entitled to judgment.
Judgment for the-defendant.