There was conflicting evidence as to whether the defendant intrusted Green with all of the keys of the jail, or only some of them, and there was evidence tending to prove that some of the inner keys were furnished by some one else — a former jailer — they being duplicates which had never come into the hands of defendant — and that said Green permitted the escape.
His Honor held, and recalled the jury twice to tell them, that it made no difference whether the jailer intrusted the keys of the cells to James Green or not, but the question for them was whether he had used due care in employing a trustworthy assistant. He had instructed them that the jailer had a right to employ an assistant and to intrust him with all the keys, but that he must be careful to employ one who was trustworthy, and if he did not use such care he would be guilty; that defendant *Page 454 admitted being informed that said Green was a big liar, and that they had seen Green on the witness stand and heard him admit that he had made contradictory statements about the escape. Section 1022 of The Code, in relation to the offense (624) above referred to, provides that "in all such cases it shall be sufficient, in support of the indictment against such sheriff or other officer, to prove that such person so charged or sentenced was committed to his custody, and it shall lie upon the defendant to show that such escape was not by his consent or negligence, but that he had used all legal means to prevent the same, and acted with proper care and diligence."
The defendant undertook the burden of showing that the escape was not by his consent or negligence. The rule is laid down in S. v. Johnson, 94 N.C. 924. "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 irresistible adverse force."
The defendant set up his sickness, which, if believed by the jury, was a sufficient excuse for his personal failure to prevent the escape, and the only question, as stated by his Honor, was whether he had exercised due care in the employment of his assistant. It was properly left to the jury, accompanied with the repeated instructions of his Honor. There is
No error.
Cited:. S. v. Blackley, 131 N.C. 733.
(625)