(after stating the facts). The Act of March 6th, 1867, cli. 196, without the concluding proviso as found in The Code,- §3448, was in force when the case of the State v. Shaft, 78 N. C., 454, was decided, at February Term, 3 878, and in which it is held, that a prisoner, undergoing a sentence of imprisonment in the county jail for six months, for the offence of fornication and adultery, could be lawfully farmed out, and hired to his wife. In the opinion, RodMAN, J., makes the suggestion,, in view of the possible mischief of a provision, unrestrained in its terms, and which authorized the employment of convict labor “for individuals or corporations;” that the Legislature might see fit to amend the law, by leaving it to the Judge to say, in his sentence, whether the prisoner may he hired out or not;-or by allowing the hiring, only when the prisoner shall be in prison for non-payment of a fine.

The suggestion seems to have attracted the attention of the General Assembly, and in the amendatory Act of March 13, 1879, cb. 218, this clause was added, as a third proviso: “It shall not be lawful to farm out any such convicted person, who may be imprisoned for the non-payment of a fine, or as punishment imposed for the offence of which he may have been convicted, unless the Court before whom the trial is had, shall in its judgment so authorize.” The Code, §2448.

This proviso must therefore, have been intended, as argued by the Attorney General, to apply and be confined to the farming out of convict labor to “ individuals or corporations,” the danger of abuse of which power, conferred without restraint, was made manifest in the case referred to. It does not extend to labor employed upon public works, and under the supervision and control of public agents.

The next two sections look to a similar employment of convicts in the penitentiary, under a written contract with the county and municipal authorities, and while they are to “be fed, clothed and quartered while in such service,” by the board of directors or managers of the penitentiary, as in the case of the *809 hiring of convicts to railroad companies, it is expressly provided, that if any person, charged in any way with the control or management of such convicts, shall negligently permit to escape, or shall maltreat them, every person so offending shall be guilty of a misdemeanor,” &c., §3450.

While this provision primarily applies to escapes of convicts committed to the penitentiary, and employed by the county or municipal authorities in public works, it is in our opinion, but declaratory of a principle equally pertinent to convicts taken from the county prison, and placed in charge of guards or other superintending county or municipal officers. It is in each, a breach of public duty, and as much so in reference to the one as to the other class of convicts, allowed negligently to make their escape. The prisoner was in the lawful and immediate custody of the defendant, whose duty was to maintain that custody, and he is amenable to a criminal prosecution for wilfully allowing his escape. 2 Whar. Cr. Law, §2609.

We shall not repeat what has been said in State v. Garrett Johnson, ante., in considering a similar accusation against a guard for permitting an escape of a prisoner, whose good conduct bad raised him to the dignity of being a “trusty,” as in the present case, and who had in like manner betrayed the confidence reposed in him, and forfeited his newly-acquired good name. The escape here, was the result of the direct voluntary act of the defendant, and in disregard of the command of his superior.

There is no error. Let this be certified.

No error. Affirmed.