Nall v. State , 34 Ala. 262 ( 1859 )

E. W. WALKEE, J.

The charges of the court must be viewed in connection with the evidence which was before the jury. Thus considered, there was no error in the instruction that, if “ the defendant discharged the duties of his office as sheriff so negligently that, in consequence of such negligence, the prisoner left the jail, and went into the town of Troy, even though for a few minutes only, and although he did actually return, this was an escape, and the jury must find the defendant guilty.” Roscoe’s Cr. Ev. 414 ; 2 Hawkins’ P. C. ch. 19, §§ 5, 6, 10, 13; Steeve v. Fields, 2 Mason, 486; Colby v. Sampson, 5 Mass. 310, 312; Lucky v. State, 14 Texas, 400 ; Riley v. State, 16 Conn. 47 ; 2 Bishop’s Cr. L. § 917; Wilks v. Slaughter, 3 Hawks, 211; Adams v. Turrentine, 8 Ired. 148. If there had been any evidence that the jailor never lost sight of the prisoner, this, possibly, might have justified some qualification of the charge. — See 2 Hawk. P. C. supra; 1 Russ. 421; 1 Hale’s P. C. 602.

2. Under an indictment for a voluntary escape, the defendant may be convicted of a negligent escape, because the former offense includes the latter. — Smith v. Hart, 1 Brevard, 416; Fairchild v. Case, 24 Wend. 380, 383; Skinner v. White, 9 N. H. 204; Henry v. State, 33 Ala. 389. Consequently, under an indictment against a sheriff' for a negligent escape, a conviction may be had on proof of a voluntary escape. — Henry v. State, supra. There was, therefore, no error in the refusal 'of the charge asked by the defendant.

3. The bill of exceptions shows, that Thompson was one of the deputies of defendant; that the defendant had instructed the jailor, that he must obey the orders of his deputies as his own; and that, in consequence of these instructions, the jailor was in the habit of yielding obedience to the orders received from the defendant’s deputies. Assuming that this evidence was sufficient to show that the defendant had authorized .his deputy, Thompson, to give directions to the jailor in reference to the prisoners in his custody; yet, as every man is presumed to be innocent until his guilt is made manifest, this cannot be construed as an authority to Thompson to give any other directions than such as were legal, proper, and customary. 2 Greenl. Ev. § 68. The declarations of his agent do not hind the principal, if not within the scope of his agency, or expressly authorized. The direction of the deputy to the jailor, to allow the prisoner the liberties enjoyed by him, was a command to violate the law — it was not a legal or proper direction* and was not within the scope of the authority conferred by the defendant. As a general rule, if an agent does an illegal act, the principal is not responsible for it criminaliter, unless it is shown that the act was done by bis express authority. — Patterson v. State, 21 Ala. 572 ; Rex v. Higgins, 2 Str. 885; Hern v. Nichols, 1 Salkeld, 289; Mitchell v. Mimms, 8 Texas, 6; Commonwealth, v. Lewis, 4 Leigh, 664. The court erred, in permitting the declarations of the deputy to go to the jury, as evidence against the defendant. If it had been shown that the defendant was cognizant of the orders which his deputy gave, and made no objection, the case might have been different.

Whether or not a sheriff is liable criminally, and, if so, how far, for an escape occasioned by the negligence or willful misconduct of the jailor, is a question which is not presented by the record, as it now stands, and on which it is not necessary for us to express our opinion. — See Roscoe’s Cr. Ev. 412; 2 Hawk. P. C. ch. 19, § 29; Fell’s case, 1 Salkeld, 272; 2 Bishop’s Cr. L. § 922; Randolph v. Donaldson, 9 Cranch, 76; Comm. v. Lewis, 4 Leigh, 664.

The judgment is reversed, and the cause remanded.