
    *Commonwealth v. Connell.
    June Term, 1846.
    (Absent Christian. J.)
    Jailors — Permitting Prisoner to Rave Instrument by Which tie Might Escape - indictment  -An indictment against a jailor, tor permitting a prisoner in his custody to have an instrument in his room with which he might bréale the j ail and escape ; and i'or failing carefully to examine at short intervals the condition of the jail, and what the prisoner was engaged at in said jail, in consequence of which the prisoner escaped, does not state an indictable offence.
    The defendant was indicted at the October term 1845, of the Circuit Superior Court of Law and Chancery for *the county of Monroe, ! ‘ for that he the said William Connell, jailor of Monroe county, and who hath the care, charge and custody of the jail of Monroe county, on the 27th day of August, in the year of Christ 1845, at the county aforesaid, and within the jurisdiction of the Circuit Superior Court of Law and Chancery aforesaid, did permit and suffer one James K. Kitten-house, who had been indicted, and not tried, for feloniously breaking and entering a storehouse belonging to Samuel Hamilton and James M. Nickle, merchants and partners trading under the firm and style of Hamilton & Nickle, and stealing therefrom bank notes to the amount of seven hundred dollars belonging to the said Hamilton & Nickle; and who, previous to the said 27th day of August 1845, had been duly and regularly committed to the public jail of Monroe county, and was in the care, charge and custody of the said William Connell, jailor as aforesaid, to have in his possession a razor, and to keep said razor in the room where the said James K. Rittenhouse was confined in the said jail; which was an instrument well calculated to enable the said James K. Rittenhouse to cut the wooden part of said jail, by which he might make his escape from the said jail; and the said James K. Rittenhouse, on the said 27th day of August 1845, by the use of said razor, did cut the wood at one of the windows of said jail; and was thereby enabled to break the said jail; and did then and there break said jail, and make his escape from said jail, and from the custody of the said William Connell, in consequence of being improperly permitted by the said William Connell to keep a razor in the room where he was confined in said jail. So the jurors aforesaid, upon their oath aforesaid, do say that by the improper conduct of the said William Connell in permitting the said James K. Rittenhouse to keep a razor in the room in which he was cpnfined in said jail, and by failing carefully to examine at short intervals the condition of said jail, and*what the prisoner James K. Rittenhouse was engaged at in said jail, as was his duty as jailor aforesaid, the said James K. Rittenhouse was permitted by the said William Connell to make his escape from the jail of Monroe county, in manner and form aforesaid; to the great hindrance of public justice; to the evil example of all others in like cases offending, and against the peace and dignity of the Commonwealth. ”
    To this indictment, the defendant, at the succeeding May term of said Court, pleaded not guilty, and a jury which was empaneled and sworn to try the issue, found the defendant guilty, and assessed his fine to seven dollars and fifty cents.
    At a subsequent day of the term last aforesaid, the said defendant, by his attor-nejq filed a plea in arrest of judgment. Whereupon, the Court, with the assent of the defendant, adjourned the following questions to the General Court for its decision :
    1st. Do the facts set out in the indictment constitute an offence, for which a jailor may be indicted?
    2d. If they do. what judgment ought to be rendered ; for the fine, and removal from office of jailor? Or for the fine only?
    3d. If they do not constitute an indictable offence, is it such a violation of duty as would authorize the Judge to fine, and remove him from office, under the provisions of the 7th section of the act concerning jailors, and for other purposes?
    
      
      See monographic note on “Indictments, Informa-tions and Presentments" appended to Boyle v. Com., 14 Gratt. 674.
    
   BROWN, J.,

delivered the opinion of the Court.

If this were an indictment against the defendant as jailor, for negligently permitting a prisoner committed to his custody to escape, there could be no doubt but it would be good; as it is well settled that such an indictment can be sustained. But upon a careful examination of the indictment in the case at bar, the Court is of opinion, that it is not of that character. The facts charged *are, that the defendant as jailor, did suffer and permit James K. Rittenhouse, who was confined in his jail on a charge of felony, “to have in his possession a razor, and to keep said razor in the room where he was confined;” and that he failed “carefully to examine at short intervals the condition of said jail, and what the prisoner James K. Rittenhouse was engaged at in said jail;” and the escape set out in the indictment, is stated merely as a consequence of said act and omission, and not as an independent offence. If the indictment were for a negligent escape, these facts would have been proper evidence before the jury, for the purpose of sustaining that charge. But the Court is of opinion, that they are not of themselves indictable.

This renders it unnecessary to answer the second quiere.

As to the third, the Court being of opinion that it does not properly arise in the case, declines responding thereto. All of which is ordered to be certified.  