STATE v. MILLIS, 2 Del. Cas. 238 (1798)

Rodney’s Notes

STATE v. JOHN MILLIS.

Court of Quarter Sessions of Delaware, Kent County.
May, 1798.

Indictment. Rescue from a constable. Committed by Chief Justice Bassett for assault on first [count]: Negro Mingo, slave of John Millis, was by said Millis rescued from the custody of John Clark, constable. Second count, for making an affray, commanded John Clark to arrest said Mingo and deliver him to the jailer. Was rescued, etc. This was on election day.

Richard Bassett, Esq. On the election day last I directed two constables to attend me at my door to keep order. About 1 or 2 o’clock I saw two black men engaged in a battle. Ordered John Clark to seize one or both of them and take them to jail. I had stepped in on business. Clark returned and told me he had taken one of them to jail, and that John Millis and some others rescued them in a forcible manner. I did not know the persons.

John Clark. Mr. Bassett about 3 o’clock pointed towards some people that were fighting and ordered me to take them to jail. I went and seized a negro man and requested assistance; with difficulty we got him to jail. Some person unlocked the door; we were just putting him in. I then see a crowd at the door with John Millis at their head. One said, “Take him away from

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the damned son of a b., Millis, I’ll stand by you.” Millis came in and twenty or thirty with him, seized me with one hand and with the other pushed the Negro out at the back door. Damned Mr. Bassett’s officer, and him too. Were such a number, I retreated, thought my life was in danger. Some persons then offered to assist me in retaking him, but I said there was another remedy beside fighting. Millis then brought him through the jail, pushed him out of the front door and carried him off. This was the same Negro Mr. Bassett ordered me to take to jail.

Cross-examined. I did not see the Negro strike anybody. I believe he was the same Richard Bassett ordered me to take. He was swearing and disorderly, looked as if he had been fighting etc. I demanded him of Millis and his company in the yard, were about twenty or thirty with him.

Thomas Parker. I see the Negroes fighting. Joseph Wilson and me had Mingo by the hands. A woman seized him, tore his trousers. I had him by one hand, and he swore he would not go home till he killed the other. Clark came up, requested my assistance and others. We took him into the jail. John Millis and a number came in and forcibly took and pushed Mingo out and cursed Mr. Bassett and his officers and said if they had anything to say to his Negro, let them come out and he’d see fair play. The crowd behaved very bad.

William Ryley. I was engaged in the court house, was told there was a bustle at the jail. I got in with difficulty, at length saw Millis pushing a Negro from the back yard. I took hold, told him the Negro was committed by Richard Bassett. He pushed along and damned us.

Richard Bassett. I supposed Clark arrested same person I directed.

Vining. We think defendant called in a mild manner to know what his Negro had done and did no [___].[1] Bl.Comm. 130, 131. Rescue is forcibly freeing another from arrest.

Peter Keaten. I see number at the jail etc. Millis turned round and asked if anybody had any against the Negro. He took the Negro through the jail. I see Ryley in the entry, and Clark was twenty yards from the door as I was going in. I know Mingo. He is abusive when in liquor.

Evan Lewis. Was a bustle in back yard. Millis took him through the jail. He met Ryley. I don’t know what was said. After, in the green, Millis seemed uneasy. He heard Mr. B. had committed the Negro.

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Richard Corker. I saw the crowd go through the jail and heard Millis say don’t put the Negro, put me to jail.

Nathan Burrows.

Ridgely. The defense set up is that Millis did not know he was arrested. I say it is not necessary he should if he rescued him. An officer may go at midnight and arrest a person for a breach of the peace, but a private man must show his authority. 1 Hale P.C. 606. If a person breaks the prison and lets out felons, it is felony; if traitors, it is treason. 4 Bac.Abr. If an officer has arrested a person, and another rescues him, he is guilty; for every person is bound to take notice of an officer.

Vining. We rest our defense on two points. First, the officers were negligent. Second, the rescue is not legally proved. We say Millis was not absolutely bound to take notice Clark was a constable.

Rodney. We mean to show in our defense whether we are guilty of a rescue from constable or jailer. We do not mean to contend the defendant did not know he was properly imprisoned. The constable had delivered him over to the turnkey. I take it to be settled as soon as the person is brought within the doors he is in custody.

Ridgely. The counsel admit the facts, but say that he was in custody of the jailer, and certainly he was taken from the jail.

JOHNS, J.

Verdict, guilty. Fined.