(after stating the case). An escape has been effected, in the criminal sense of the law, in the language of an eminent author in a work on criminal law, “when one who is arrested, gains his liberty before he is delivered in due course of law.” 1 Russell on Crimes, 467.

It is defined in brief words by another writer, as “ the departure of a prisonerer from custody.” 2 Whar. Cr. Law, §2606.

It is not necessary to prove negligence in one who has the lawful custody of the prisoner, for it is implied, and is excusable only, when “occasioned by the act of God, or from irresistable adverse force,” or, in the language of this Court, when it results “from the act of God or the public enemy.” Rainey v. Dumming, 2 Murph., 386. This rigorous rule of the ancient common law, must, we think, find some relaxation in its application to those officers and agents, in whose custody, convicts sentenced to the State’s prison, are placed when sent out from its walls to do public work, and when greater freedom in their movements is unavoidable, and increased facilities for making an escape are offered. In such case, to make such custodian criminally answerable, the means at his disposal to secure prisoners, and the service to which they are put, must be considered, in determining whether there has been actual negligence, or a failure to use the powers conferred, in preventing an escape. The defendant in the present case, had a squad of thirteen in charge, whose field labor he *927 was to supervise, see that the convicts worked — and that they did not get away from any inattention of his. Their safe keeping was necessarily thus rendered ruOre difficult, and the measure of official responsibility should be correspondingly reduced. The policy of our penal system, looks to the labor of its convicts, not only within the prison walls, but outside, on public -works and in the service of the State, as alike securing their health, and diminishing the costs of their support, by making their own labor contribute to it. These considerations require a modification of the common law, and when an offence, such as is here charged against the defendant, is imputed to him as an overseer or guard, the guilt should be determined by an inquiry into the existence of actual negligence and inattention to duty, on the part of the accused.

Here the escape was caused by the direct act of the defendant, not only indicating a want of care, but in affording the convict an opportunity to escape. He was sent alone after bags for the picked cotton, to a place several hundred yards distant, and never returned. It was not alone a case of misplaced confidence in a “trusty,” but the errand enabled him to make his departure, and finds no extenuation in the fact that the bags were needed in prosecuting the farm work.

If such management of convicts employed in out-door work were tolerated in those who have them in keeping, their imprisonment and punishment would be rendered very precarious, and escapes frequent and unavoidable. They should at such times, remain in view and under control of the guard, so that any insubordination might be readily repressed, and any attempt at escape frustrated at once, or at least such means as were at'hand, could be used for that purpose.

No objection is made to the form of the indictment, nor do we discover any.

There is no error, and the Court below will proceed to judgment. Let this be certified.

No error. Affirmed.