10 Johns. 420 | N.Y. Sup. Ct. | 1813
Going with the prisoner, the afternoon on which ho was arrested, two miles from the direct road to gaol, to a tavern, on the prisoner’s suggestion that the execution might, perhaps, be settled, and then going with the prisoner the same afternoon, one mile further to the prisoner’s house, to enable him to get his clothes and see his wife before he went to gaol, cannot be said to be an escape* The officer was only to take the prisoner to gaol with all convenient and reasonable diligence, and he was not to relax but for some laudable and compassionate purpose; and going to a tavern to see if the demand might not be satisfied, and then to the prisoner’s house for a very humane purpose, all within the space of a few hours, cannot be deemed an escape. A much greater relaxation, as to time, in the case of Benton v. Sutton, (1 Bos. & Pull 24.) was not, merely on that account, considered an escape. There was no error in the charge of the judge; but as to the question of fact, whether there was not a consent on the part of the officer to the prisoner’s escape that evening, the verdict appears to be decidedly against the weight of evidence, and ought to be set aside.
New trial granted on payment of costs,-
