| Conn. | Jul 15, 1843
The first question submitted to our consideration in this case, is, whether the confinement of the prisoner for the non-payment of the costs, after the expiration of the sixty days, during which he was sentenced to be imprisoned, was a part of his punishment, or a mere imprisonment for debt.
The statute provides, that “every person who shall be prosecuted for any crime or matter of delinquency, and shall be thereof duly convicted, shall pay all the necessary costs arising in such prosecution, before he shall be discharged.” Stat. de Crimes, sect. 149. The next section of the statute authorizes the attorney for the state, by and with the advice of the superior or county court, at his discretion, to discharge from imprisonment any person, holden in a common gaol, only for payment of fine and costs, who has no property or means of satisfying the same, taking his note therefor, or security, if obtainable.
The payment of the costs, must be considered as a part of the punishment; and he cannot be liberated from imprisonment until they are paid, provided he has the means of discharging them. And even if he is without those means, he must remain in gaol, unless the attorney, with the advice of the court, will consent to take his note.
We perceive no difference, in contemplation of law, between an escape before or after the expiration of the sixty days, so long as the costs remain unpaid. In this respect, his imprisonment was very different from what it would have been, had he been committed upon an execution issued upon a judgment in a civil cause.
It was long ago decided, by the court of King’s Bench in England, “that although a prisoner departs from prison, with the keeper’s license, yet it is an offence, as well punishable in the prisoner as in the keeper.” Hobert and Stroud’s case, Cro. Car. 209. That doctrine has never since been overruled, but often recognized as law. State v. Doud, 7 Conn. R. 384. Hence, if the doors of a prison are left open, by the negligence or consent of the gaoler, and the prisoner depart from prison, he is guilty of a misdemeanour. So if the prison be broken by others, without his procurement or consent, and he escape through the breach so made, he may be indicted for the escape. 1 Russ. on Crimes, 367. It is said, that however strong may be the natural desire of liberty, yet it is the duty of every man to submit himself to the restraints imposed by law.
Applying these principles to the case under consideration, does the conduct of the gaoler in employing the prisoner to bring provisions to the gaol—cook them for the other prisoners—and to milk and feed the cow, furnish a legal excuse for the prisoner’s leaving the gaol, without the knowledge of the gaoler, and departing from the state?
In the opinion of a majority of the court, such excuse is not furnished, by the conduct of the gaoler. The question is not, as to the degree of punishment which ought to be inflicted upon a person leaving under such circumstances; but whether a sufficient justification or excuse is made out for the acknowledged departure from the prison. We think the prisoner cannot shield himself under the misconduct of the gaoler. The law has not clothed the latter with the pardoning power.
But it is said, that it does not appear, that the prisoner left with an intent to escape. No doubt the intent is necessary to constitute the offence. But we do not think that question fairly arises upon the record. No such question appears to have been made on the trial. Had it been, it was a proper subject for the determination of the jury.
The fair inference to be drawn from the case, as stated, is, that the parties meant to present the question whether an in
Besides, the case comes before us in violation of a rule often repeated, that a bill of exceptions bringing up the whole case, is not admissible. It was permitted to be argued before us, by an agreement of the counsel, upon an abstract from the record. The irregularity in the proceeding was, in consequence, not noticed until after our decision was announced. We have accordingly assigned the reasons for our decision.
But even if the county court had erred in its proceedings, we do not think the case is presented to us in a form that would justify a reversal.
The majority of the court are of opinion, that the judgment of the county court ought not to be reversed.
I have not been convinced, by the argument in this case, that this prisoner has been guilty of any offence punishable by law. And I am not solicitous to search for obsolete doctrines, by which he can be made to suffer a penalty more properly incurred by the gaoler.
The motion in this case, as it seems to me, does not state any facts which constitute any offence, known either to the statute or the common law. It does not appear, that the prisoner left the gaol, by any prison-breach; nor by any art or device of his own; nor by collusion or conspiracy with the gaoler. He was in the custody of the keeper of the prison, subject to his controul and directions, at least as he supposed. By order of the gaoler, the prisoner left the gaol and the prison-yard, and was put to labour at a distance, in the barn-yard, beyond the prison limits. He did not resist the gaoler in this, and he was not bound to. It is too much to require of a prisoner, that he should resist enlargement, when it is offered to him, by his lawful keeper, without any device or procurement of his own. After the prisoner left the prison limits, he was entirely at large: he had escaped then, if he ever escaped. In order to constitute an escape, as well
It seems, the prisoner had often before left the prison, and by direction of the gaoler, had frequently gone into the streets of the city of Norwich. I cannot believe that he was guilty of an escape at these times; nor even that the prosecutor would claim this to be the law: it is repugnant to all our notions of guilt or crime. Well, but he left the prison, in this instance, in the same way; how was this any more a crime? But he did not return. This fact might have been proper evidence from which the jury might infer that he left the gaol with a criminal intent to escape. But his neglect to return did not constitute an escape, as a matter of law. I have remarked before, that if this prisoner was guilty of an escape at all, it was eo instanti that he passed the prison limits; and this would depend upon his intention then, of which the jury were the sole constitutional judges. The real offence of this man was only that he escaped from the barn-yard, or that he neglected to return to the gaol after he was, by his keeper, permitted, and even directed, to depart. But whatever else these offences may be, they were not escapes from prison, nor the violation of any other municipal law with which I am acquainted.
In principle, this is not unlike the very frequent cases of personal property procured by pretended bailment, and subsequently converted, by the bailee, to his own use; in which the question always is, whether the possession was originally obtained animo furandi, or whether the felonious intent was conceived afterwards; in which latter case, the act of taking is not larceny. And in all such cases, the question of criminal intent is for the jury.
Judgment affirmed.