State v. Brown

• Decision Date: 31 January 1880
• Citation: 82 N.C. 585
• Court: North Carolina Supreme Court
• Parties: STATE v. LUCIUS BROWN.

82 N.C. 585

STATE

v.LUCIUS BROWN.

Supreme Court of North Carolina.

January Term, 1880.

INDICTMENT for a Misdemeanor in escaping from the custody of an officer, tried at Fall Term, 1879, of GRAHAM Superior Court, before Graves, J.

The defendant appealed from the judgment pronounced upon the verdict.

Attorney General, for the State .

The defendant not represented in this court.

SMITH, C. J.

The defendant is charged with escaping from the custody of an officer by whom he had been arrested on a capias issued upon an indictment for an affray committed by him and one Wood Dean and returned by the grand jury a true bill as to the defendant only. The jury on the trial found a special verdict, in which the material facts are these: The defendant was indicted at fall term, 1878, of Graham superior court for an assault and battery upon the said Wood Dean and a capias issued thereon to the sheriff of that county and was delivered to one Philip Crisp, his lawful deputy, to be executed. Under this writ the defendant was arrested and while held in custody and before entering into obligation for his appearance to answer the accusation, made his escape without leave and against the will of the said officer.

The defendant moved in arrest of judgment, but the court being of opinion that upon the facts found the defendant was guilty, pronounced sentence and the defendant appealed.

There has been no argument in this court for the defendant; no ground assigned for the motion; no defect pointed out in the record. Upon our unaided examination but two exceptions are suggested, as perhaps the basis of the appeal.

1. An escape from an arrest upon a charge for a misdemeanor and without force is not an offence at common law, nor under the statute. Bat. Rev., ch. 32, § 32.

2. There is a variance between the allegations of the bill and the facts found in regard to the indictment under which the mandate for the arrest was issued, the allegation being that the indictment was against the defendant and the said Wood Dean for an affray, and the finding of the grand jury thereon against the defendant alone, while the facts set out in the verdict is that it was an assault and battery committed by him upon the person of said Dean.

We have had some hesitation in the absence of any direct adjudication upon the point which we have been able to find, in determining an escape by one in custody upon a charge for a misdemeanor, effected without force, to be itself a criminal offence at common law. But upon consideration and after careful examination of standard authorities upon the subject, and upon principle, we have come to the conclusion that such act is a misdemeanor.

“An escape of a person arrested upon criminal process,” says Mr. Justice BLACKSTONE, “by eluding the vigilance of his keepers before he is put in hold (that is, in prison) is also an offence against the public justice, and the party himself is punishable by fine or imprisonment. But the officer permitting such escape either by negligence or connivance is much more culpable than the prisoner; the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody, till cleared by the due course of justice. And this whether he were actually committed to jail or only under bare arrest.” 4 Blackstone Com., 129.

“The general principle,” says RUSSEL, “appears to be that as all persons are bound to submit themselves to the judgment of the law, and be ready to be justified by it, those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it by any artifice and elude the vigilance of their keepers before they are put in hold, are guilty of an offence in the nature of a high contempt and punishable by fine and imprisonment.” 1 Rus. on Crimes, 367.

So it was ruled in the case of Sir Miles Hobert that “although a prisoner departs from prison with his keeper's license, yet it is an...