does not per se, and as a matter of law, irrespectively of the realities of the case, raise up an intendment that such officer had a guilty knowledge that he was acting criminally. The criminal mind was no more shown to be present in suffering this prisoner to escape from the mere circumstance that the justice's order had been obtained through the instrumentality of the defendant, than if such order had been procured by a stranger.

In this respect, the instructions of the judge to the jury, were correct.

The exceptions taken to the indictment have been examined, but none of them have appeared to be well founded.

For the error above stated, the judgment must be reversed.

ESCAPE-WARRANT MUST BE VALID.

HOUSH V. PEOPLE.

[75 Ill. 487.]

In the Supreme Court of Illinois.

Escape-Officer Permitting Escape not Liable if Warrant is void-Defective Complaint. Where the warrant by virtue of which an officer receives a prisoner is void. because the magistrate had no Jurisdiction to issue the warrant on the affidavit made before him, the officer is not liable to prosecution for voluntarily permitting the prisoner to escape out of his custody, although the warrant is regular on its face.

SCHOLFIELD, J. Appellant was convicted, in the court below, for permitting the escape of a prisoner who had been committed to his custody in his official capacity of constable. The affidavit upon which the warrant, by virtue of which the prisoner was arrested, was issued, is as follows: :

"The complaint and information of George Huggins, of Knox Township, in said county, made before James Moore, Esq., one of the justices of the peace in and for said county, on the sixth day of May, 1873, who being duly sworn, upon his oath says that, in Knox township, in the said county, on the 25th day of April, 1873, he had a saddle and sheep skin stolen from his barn in said place, and that he verily believes that they are now in the possession of a man, name unknown— a large size man, riding a sorrel mare with a light mane and tail, and

young colt running after, when last seen

who stayed last night at Edmund Russel's, in Persifer Township, this county. He therefore prays that the said unknown described man may be arrested and dealt with according to law.

"GEORGE HUGGINS.

Subscribed and sworn to, before me, this sixth day of May, 1873. "JAMES MOORE, "Justice of the Peace."

The warrant recites, among other things, that complaint had been made, under oath, by the complainant, that he "had just and reasonable grounds to suspect that a certain unknown man (then follows the description given of him in the affidavit) is guilty of said theft, or larceny, of saddle and sheep skin, as he verily believes." The warrant is, in other respects, in the usual form, and no objection is taken to it, except such as is predicated on the insufficiency of the affidavit. The warrant was placed in the hands of a constable named Thurman to execute. Thurman, after receiving the warrant, arrested a man answering to the description therein given, and subsequently delivered the warrant to appellant, and placed the prisoner in his custody.

The first and third instructions given by the court, at the instance of the People, embrace the only questions necessary to be considered, and are as follows: "1st. The court instructs the jury that the warrant introduced in evidence in this case is a legal warrant, and will be so regarded by the jury. 3d. The jury are instructed that, if they shall believe from the evidence, beyond a reasonable doubt, that on the sixth day of May, A. D. 1873, the warrant introduced in evidence in this case was issued by James Moore, a justice of the peace of said Knox County, in the State of Illinois, on the complaint of George Huggins, for the arrest of the person described therein, for a criminal offense, and that said warrant was delivered to Fletcher Thurman, a constable of said Knox County, to arrest the person named therein, and that said Thurman, as such constable, and under and by virtue of said warrant, did arrest one William Hughes, and that said Hughes was the person described in said warrant; and that said Thurman afterwards delivered the said warrant, and the body of said prisoner Hughes, into the legal custody of the defendant, James D. Housh, then and there a constable of said Knox County, and that said James D. Housh willfully failed and neglected to bring the said prisoner before said James Moore, the officer who issued said warrant, or before any other justice of the peace, in his absence, as required by law, but voluntarily suffered and permitted said prisoner, before conviction, to escape and go at large, in manner and form as charged in the indictment, then the jury, if true to their oaths, must find the defendant guilty."

Section 6, article 2, of the Constitution, is: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue without probable cause, supported by affidavit, particularly describing the place to be searched, and the person or thing to br seized." And section 4 of division 18, of the Criminal Code,1 provides that it shall be lawful for any judge of the Supreme or Circuit Court, in his circuit, or any justice of the peace, in his county, "upon oath or affirmation being made before him, that any person or persons have committed any criminal offense in this State, or that a criminal offense has been committed, and that the witness or witnesses have just and reasonble grounds to suspect that such person or persons have committed the same, to issue his warrant under his hand," etc.

It will have been observed that the affidavit in this record wholly omits to state either that the person therein described committed the offense for which the warrant for his arrest was issued, or that the person at whose instance and upon whose complaint it was issued, had just and reasonable grounds to suspect, or did in fact suspect, that he was guilty of such offense.

It is true that the recent possession of stolen property, unexplained, raises a presumption that the person in possession stole it; but this is only a rule of evidence, and the presumption may be overcome by proof showing that the possession is not inconsistent with an honest intention. The citizen is, both by the constitution and the law, entitled to be free from arrest, by warrant on a criminal charge, until a complaint under oath or affirmation is made, charging that a crime has been committed, and that there is probable cause to suspect that he committed the same. For aught that appears in this affidavit, the prisoner may have honestly come to the possession of the property claimed to have been stolen, by purchase, or by borrowing, or by finding; and this may have been known to the person making the affidavit. There is nothing in the affidavit necessarily inconsistent with this idea. Without saying more, it is sufficient that, in our opinion, the affidavit was insufficient to give jurisdiction for the purpose of issuing the warrant. A majority of the court are of opinion that, the affidavit being insufficient, the prisoner was improperly deprived of his liberty, and he was justified in asserting his right to freedom, guaranteed to him by the Constitution and the law, by refusing to submit to the warrant. In breaking away from the officer's custody he committed no offense.2

The rule, as found in treatises upon criminal law, is, that whenever an imprisonment is so far irregular that it is no offense in the prisoner

1 Gross' Stat. 1869, p. 208.

2 State v. Leach, 7 Conn. 752.

to break from it by force, it will be no offense in the officer to suffer him to escape.1

It is true, as contended by the State attorney, that as the warrant was regular on its face, the officer who made the arrest, and the appellant who received the custody of the prisoner, would be protected in an action for assault and false imprisonment, in consequence of his arrest and deprivation of liberty, but it does not follow therefrom that appellant was bound to obey the warrant. The somewhat anomalous condition that a sheriff or constable occupies in such cases is well explained in Tuttle et al. v. Wilson.2

It is there said: "The rule that a ministerial officer is protected in the execution of process issued by a court, or officer having jurisdiction of the subject-matter and of the proccess, if it be regular on its face, and does not disclose a want of jurisdiction, is a rule of protection merely, and beyond that confers no right; it is held to be personal to the officer himself, and affords no shelter to the wrong-doer, under color of whose process, if it be void, the officer is called upon to act. Such an officer may stop in the execution of process, regular on its face, whenever he becomes satisfied there is a want of jurisdiction in the officer or court issuing it; and if sued for neglect of duty, may show in his defence such want of jurisdiction.3 He can, if he chooses, take the responsibility of determining the question of jurisdiction, or any other question to which the process may give rise."

The justice of the peace not having been invested with jurisdiction by the affidavit to issue the warrant, it was void, and it necessarily follows that the court erred in giving the instructions, and that appellant's conviction was improper. The judgment is reversed and the defendant discharged.

Judgment reversed.

ESCAPE-CUSTODY MUST BE LEGAL-QUESTION FOR JURY.
HABERSHAM v. STATE.

[56 Ga. 61.]

In the Supreme Court of Georgia.

1. On the Trial of a Prosecution for Aiding to Escape from custody, the fact of custody is for the jury, and so, also, is the legality of that particular custody. It is error to charge that the custody was legal if the State's evidence is true, or that if the jury believe the evidence for the State they must find a verdict of guilty.

12 Hawk. P. C., ch. 29, sec. 2; Ros. Cr. Ev. 459; 1 Russ. on Cr. 417.

2 24 Ill. 561.

3 Earl v. Camp. et. al., 16 Wend. 562.

2. Custody by a Private Person After a Legal Arrest without Warrant, becomes illegal if protracted for an unreasonable time, and whether the time was reasonable or unreasonable is a question for the jury, under proper instructions from the court as to the promptness which the law exacts in conveying the party arrested before a magistrate.

3. Custody Voluntarily Assumed by a Private Person without Warrant, may be lawfully terminated with his consent, by turning the prisoner loose.

Habersham was indicted for the offense of assisting a prisoner (name unknown to the jurors) to escape from the custody of Lawrence Banks and Chatham Rodgers. The defendant pleaded not guilty. The evidence made, in substance, the following case:

On the night of June 13, 1875, at about one o'clock, two clerks Banks and Rodgers, by name, arrested a boy in the house which connected with the store in which they were employed. They state that this boy, with some other person who ran off, broke into the house with the view of passing thence into the store; that they only struck him for the purpose of overcoming his resistance when it was sought to arrest him; that the boy had a sack over his head, with holes for his eyes cut in it.

After his arrest he was tied, and, according to the evidence of the defendant, whipped twice. Rodgers sat up with him all night. In the morning Banks went to tell the proprietors of the store what had occurred. During his absence, according to the testimony of the State, at about eight o'clock, defendant untied the boy and took him away from Rodgers. Defendant said he would take upon himself the responsibility of releasing him. Rodgers said the boy had broken into the house. Defendant said that he was a constable and knew the rules of law. Rodgers did not resist defendant, as he was afraid of him. There had been a storm on the previous evening at about nine o'clock. The boy, whose name was subsequently discovered to be Solomon Weaver, testified that he went through open doors into the house for the purpose of avoiding a storm; that he went into a closet and went to sleep; that he entered before the shop was closed; that when discovered he was shot at, arrested and whipped; that when defendant came in the morning he gave him this account of the transaction; that Rodgers then told the defendant to turn him loose, which defendant did; that he immediately gave himself up, knowing that he had done nothing wrong.

Defendant stated that on the night of June 13th, ne was up very late, and in passing the house which had been broken into he heard some one crying; that he peeped into the house and saw a boy tied; that he got up at twenty-five minutes after nine o'clock a. m., and saw a crowd in front of the store; that he went down there and saw this boy, who gave him his account of the trouble he was in, saying that Rodgers had