concurred.
Comeg ys, C. J.The English authorities cited by the state in the argument of the deputy attorney general, and all others that could have been cited by him from the same source, to legalize the rearrest of an escaped prisoner, are cases where the prisoner was in custody either upon a charge of felony or conviction of it. There can be no contention against the right of rearrest where the escape is prior to a formal commitment, or while the prisoner is serving out a sentence. Except, perhaps, in the case of a voluntary escape, —that is, by consent of the captor in the one case, or jailor in the *456other,—rearrest is perfectly lawful. But can such rearrest be made for the purpose of carrying the sentence (in case of conviction) into effect when the time for the end of the sentence has passed ? That is the question to be dealt with.
I have been at great pains to search the English treatises and reports upon the subject of rearrest of escaped criminals, but have not been able to find one case which in any way countenances the argument presented on behalf of the State; and yet it is impossible not to imagine that many cases similar to the present must have occurved in that kingdom. This is a very significant fact. If the courts there had ever had such a question as raised in this case before them, there would Have been report of it somewhere. But there is none anywhere. It is true, there is plenty of authority from Lord Coke down, as there was in his day from the time of the earliest of his predecessors in legal bibliography, that one who escapes prison voluntarily may be rearrested at any time afterwards by his jailor or custodian, but every example given for the information of the reader is of imprisonment without definite, exactly ascertained time (not period) when it is absolutely to end. As I have said, the confinement was upon a charge in the one case, or conviction in the other, of a crime deemed felony. Of course, a rearrest in the former was lawful; otherwise there could be no bodily commitment to answer the charge; and in the latter, as felonies were most of them punishable with death, there was no time fixed when the imprisonment should cease. There could be no end of it except death. The final commitment in capital felonies was till sentence done upon the prisoner’s body. There was no time appointed for execution of sentence of death until a very late period, the warrant of execution, designating no day for its performance, but simply ordering it to be done. The time was in the discretion of the officer, which he was to be careful to exercise at his peril. This was changed, however, by St. 25, Geo. II, c. 37, in cases of murder,—a crime at that time very common. To mark the general sense of the outrage to public justice by the fre*457quency of such crime, section 3 of that act was framed by parliament, which itself fixed the day of execution to be the next but one after sentence, unless that day happened on Sunday; if it did, then on the following Monday. Until the passage of that statute the time and place of execution were never part of the sentence. “ The time and place of execution are never part of the sentence, except in case of murder, when they become so by the special provisions of the Legislature.” 1 Chit. Grim. Law, 782. The section referred to is in these words: “ That sentence shall be pronounced in open court immediately after the conviction of such murderer, and before the court shall proceed to any other business, unless the court shall see reasonable cause for postponing the same, in which sentence shall be expressed not only the usual judgment of death, but also the time appointed thereby for the execution thereof, and the usual marks of infamy hereby directed for such offender, in order to impress a just horror in the mind of the offender, and on the minds of such as shall be present, of the heinous crime of murder.” It will thus be seen that all remarks of judges who have dealt with the question of recapture after expiration of the time of imprisonment fixed by the sentence are without any support of the authorities to which we habitually resort for law upon most subjects. And those in this country, cited in opposition to the petition, admit impliedly by their answer to the argument of time fixed, that such time is no part of the sentence or judgment; that, if it were such part, there would be no right of rearrest after the time expired. That appears to me to be the just inference from the language used. It is provided in the chapter of ■“ Crimes and Misdemeanors ” of our Code, that, “ when imprisonment is part of the sentence, the term shall be fixed, and its commencement and ending specified.” Page 795. This is but a pruning of the language of the Code of 1829, providing that, “ whenever imprisonment shall be a part of the punishment, the court in the sentence shall specify the day on which the term shall commence, and also the day on which it shall expire.” The meaning is the same precisely.
*458Now, I have shown that in England, since the statute ot; George above quoted, time is part of the sentence of murder ; and yet the section of it imposing upon the court the duty of fixing if is of no greater significance or importance in respect of effect than our provisions quoted. It therefore would seem to be an unavoidable conclusion that by these provisions the time for the beginning and ending of a term of imprisonment is as much a part of the judgment or sentence as any other part of it; for instance, in this case, the lash, pillory, and imprisonment itself. Such being the case, how can an escaped convict be rearrested after expiration of the time fixed by the sentence for ending his imprisonment, and held till the years or months, as the case may be, assigned for his incarceration, have expired ? I am unable to give any answer to this question in support of the State’s contention. There is certainly no statute authorizing rearrest and imprisonment in such a case; and the sentence is, in the nature of such procedure, incapable of alteration. Its features are fixed, and no law can be passed which will change them, in the case of a person, against whose crime such sentence was pronounced. There can be no two opinions about this; nor about the suggestion made in the argument that the: sentence might be considered as having an implied term coupled with it that the prisoner should not break jail. No sentence of a court in a criminal case has ever had imported into it by construction any sanction whatever. It is of the essence of a criminal sentence that it shall be without latent or patent amjbiguity, and be not subject to any implication of meaning. The language of our criminal statute punishing offenses like that originally committed in this case is that the offender “ shall be imprisoned for a term not exceeding ten years.” The law requiring the beginning and end of the term to be fixed, the sentence is in this language, where it is for a year or more: “ That you be imprisoned [or suffer imprisonment, as-it is sometimes expressed] for the term of one year of —:-years,, beginning with this day, and ending on -day of--, A. D.,-■, [the day preceding the anniversary of the sentence.]”
*459Then follows, at the end of the specific punishment, the commitment to the custody of the sheriff, which completes the sentence. How can the statutory penalty ot imprisonment for a fixed term, beginning, by its language, on one day, and ending on another day, and which is embodied in the judgment pronounced by the court, be altered by a sheriff, and made to expand so as to include enough more time to make up for that when the convict was out of jail, and not undergoing imprisonment ? A judgment of a court in a criminal case cannot be altered, even by it, after the final adjournment of the term when it was given; much less can it be taken up and a meaning given to it, which the rigid simplicity of its language forbids. There is no warrant for doing such violence. In none of the cases presented by the State was the sentence, like that in this case, to begin on a certain day, and end on a certain other day; but that the convict be imprisoned for a certain number of months or years commencing at a definite time. In such cases there is no difficulty, because the imprisonment is for a space of time generally, the ultimate limit of which is not determined by its commencement. Therefpre it was properly held that until the imprisonment feature of the sentence had been satisfied by actual incarceration, it continued for that purpose. But in this State, by the requirements of our statute, both the beginning and the end of the term shall be fixed, when imprisonment is part of the sentence. The construction to put upon that provision is the uniform practice of the court in passing sentence, the language of which sentence I have before given; and I have shown also that time, when required to be stated, is part of the sentence. I think it wiser to follow the English doctrine upon that subject, which I have given, than expressions from one or more of our State courts, which it appears to me the real question before them did not always call for.
There is another consideration which does not seem to have had .the attention given to it that should have been. In England, from whence all our legal ideas upon the subject of escape come, the prisoner received the same punishment for escape as that to which *460he was sentenced; or, if charged with crime, that awarded to the ■crime. That is perhaps the reason why nothing is said about the right of rearrest after expiration of the term, if it can be conceived that such right existed. The end of assuring punishment appropriate to the original offense could be secured by indictment and conviction of breaking jail. Such would have been the law of this State at this day but for the ancient provision of our criminal law (Rev. Code, 767, § 18) that certain offenses named, and all others indictable at common law, and not specially provided for by statute, should be misdemeanors and punishable by fine and imprisonment, or either, in the discretion of the court. If this clause were out of the way, the petitioner could, upon conviction of breaking jail, be sentenced precisely as he was before. Now, how does the tact that he cannot be, (though he may be fined as much as before, and given another 10 year’s term in jail,) warrant this court in adding to his original sentence a provision that, if the prisoner escaped, he might be arrested again at any time ? That is precisely what it would do, in effect, if it were to hold that imprisonment now, after the time of expiration of the sentence has so long passed, is valid.
It seems unnecessary to pursue this view of the subject any further than to remark that there is no hint, even, in any English law book, that an escaped prisoner can be arrested after his sentence of imprisonment has ended, where there was a fixed date for its termination expressed in that sentence. The beginning and end being in this case incorporated, by legal requirement, in the sentence, and this being part of it, the sentence was the same, in effect, precisely as if its language had been: “ That you be imprisoned from this day until-day of--, A. D.-.”
Looking at the matter as before presented, I might now, as I conceive, declare unhesitatingly that the petitioner ought to be discharged, but for one important point made by the State in the argument, which, in effect, is that to discharge him would be to give him the benefit of his own illegal conduct in breaking jail. This position rests upon one of the maxims of the law, nullus oommodum *461capere de injuria sua propria, the pointed English iron of' which is, no man shall take advantage of his own wn - fur high quality of maxims is well expressed by Plowden h; Vim.- *, p. 27) in the case of Colthirst v. Bejushin: “ Further, ii ■ - ; • > principal things from whence arguments may be drawn ; m . to say, our maxims, and reason, which is the mother of all , B maxims are the foundations of the law, and the 1: of reason, and therefore they ought not to be impiv," ¡ o be admitted. These maxims may, by the help . unpared together, and set one against another, (although u M, n- i vary,) where it may be distinguished by reason that a lh»m . ■. r— to one maxim than another, or placed between two mi'. v . ■ theless, they ought never to be impeached or impugned, t.n to be observed and held as firm principles and auihv,i. -. . ■ • - selves.” It is in support of this maxim that the ¡v. oil ¡ n-., in Boynton’s Case, 3 Coke, 43, was adopted. Lord WV are: 11 Secondly, it was resolved that if one in execuii m his own wrong, and be retaken, he should never have querela to discharge himself of the imprisonment, because \ ■ not take advantage of his own wrong.” The case was - > querela, brought on the ground of an escape in law; m- , - p , who had the complainant in custody on his way to Westtn ¡- vcr from the county of Suffolk having taken him (but at his own r q i, ■ e) to Lambeth, in the county of Surrey, out of the way, and not í ¡ the way, to Westminster. Now, as a sheriff’s writ does nor run into a county of which he is not sheriff, it follows that a p n under a ca. sa., if taken by the sheriff into another county, is taken where that officer has no authority to hold him, and thus the latter consents in law to his escape, as much so if he had in fact opened jail doors to him, and he had gone away. Under such circumstances, he is liable to the plaintiff In Boynton’s Case, however, as before said, the prisoner went to Lambeth, in Surrey, at his request; the bailiff attending him, and afterwards delivering him according to the command of the writ. His complaint failed, not *462because there had been no legal escape in taking the prisoner unnecessarily into another county as the bailiff proceeded to Westminster,—for there had been,—but because the maxim forbade relief to- him as seeking advantage from his own wrongful act in inducing the officers to commit an escape.
In Ridgeway’s Case; in the same part of the report, page 52, it is said by the first resolution: “Although the prisoner flyeth into other counties where the sheriff hath no power, and where it may be objected the sheriff cannot have the custody of him, yet, forasmuch as the escape was of his own wrong, (whereof he shall not take advantage,) the sheriff might in fresh suit take him in any other county, and he should be held in execution. * * * And although the defendant be taken on a capias ad satisfaciendum and escapes, yet, if the writ be never returned and filed, the plaintiff may have a new capais ad satisfaciendum against him, and take him again, and he shall not take advantage of his own wrong. * * * And where the prisoner escapes of his own wrong, and is retaken, he shall never have an audita querela against the sheriff.”
In Cro. Eliz., at page 555, the maxim was applied against a complainant who had obtained the writ, and contended that, as his co-defendant had escaped from custody, he also was entitled to be discharged. The court denied him his contention, and said, inter alia: “If one be in execution, and escapes de son tort demesne, it hath been adjudged in an audita querela to be no cause of discharging himself. And it hath been also adjudged in this court, between Sympson and Boyton, that if he [the prisoner] escapes by the sheriff’s permission, and be retaken, yet it is a good execution for the party, if he will; and it shall not conclude the party to enforce him to take his remedy against the sheriff. A multo fortiori, unless two be in execution, the escape of the one shall not give his companion an advantage, and make the plaintiff to lose his execution, .and be put to his remedy against the sheriff, who perad venture is nothing worth. Wherefore it was adjudged for the defendant.” *463This case is one of the authorities cited by Coke in Ridgeway's Case.
Now, there is absolutely no authority to be found in conflict with the maxim; but it is applied in every case where one seeks to avail himself at law of a benefit or advantage which his own wrongful or (as in a case like the present) illegal act has brought about. Whatever advantage may accrue to others from his conduct (as, for example, to the plaintiff where the sheriff is solvent, and the defendant not,) none can be had by him. It is perfectly evident in the case put by Coke, and Croke also, that but for the maxim the plaintiff would be thrown entirely upon the sheriff for escape; but while he could bring his action and recover, yet he might treat the execution as good. A capias ad satisfaciendum, executed and returned and filed, is payment in law of the debt against the prisoner. The plaintiff’s remedy, if he escape, is only by action against the sheriff", who is bound to keep him, and must answer for his escape, he having the power to take all necessary means to secure him in custody. This shows how rigid is the maxim. The plaintiff can have no claim on the body of the prisoner, and yet the latter is not entitled to the audita querela to get relief against the sheriff for holding him.
It is very certain that a statute is needed to make some other provision, in criminal cases at least, for the consequences of escape by a prisoner, than'the common-law precepts of indictment.
In view of the unequivocal application of the maxim to this application, my opinion is that the relief prayed for in the petition must be denied, and the prisoner remanded to custody.