process of any court other than such courts as in the last preceding paragraph (e) mentioned, "or shall serve or enforce any forged process of any court whatsoever, knowing the same to be forged, or shall deliver or cause to be delivered to any person any paper falsely purporting to be any such process, or a copy thereof, or to be any judgment, decree, or order of any court of law or equity, or a copy thereof, knowing the same to be false, or shall act or profess to act under any such false process, knowing the same to be false, shall be guilty of felony (ƒ). By certain other sections of the same act of 24 & 25 Vict., the undermentioned persons are likewise to be adjudged guilty of felony:— 1. Whosoever shall forge or fraudulently alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or fraudulently [* 139] altered, any instrument, whether written or printed, which is or shall be made evidence by any statute, and for which offence no other punishment is by the principal enactment provided (g). 2. Whosoever shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or altered, any court roll or copy of any court roll, relating to any copyhold or customary estate, with intent to defraud (h). 3. Whosoever shall forge or fraudulently alter, or shall offer, utter, dispose of, or put off, knowing the same to be forged or fraudulently altered, any memorial, affidavit, affirmation, certificate, or writing, made or issued under the provisions of any statute, relating to the registry of deeds, or shall forge or counterfeit the seal of or belonging to any office for the registry of deeds, or any stamp or impression of any such seal; or shall forge any name, handwriting, or signature purporting to be the name, handwriting, or signature of any person to any such memorial, affidavit, affirmation, certificate, or writing which shall be required or directed to be signed by any statute, or shall offer, utter, dispose of, or put off any such memorial or other writing as in this paragraph before mentioned, having thereon any such forged stamp or impression of any such seal, or any such forged name, handwriting, or signature, knowing the same to be forged (i). * 4. "Whosoever, with intent to defraud, shall forge or alter, or shall offer, utter, dispose of, or put off, knowing the same to be [*140] forged or altered, any summons, conviction, order, or warrant of any justice. of the peace, or any recognizance purporting to have been entered into before any justice of the peace, or other officer authorized to take the same, or any examination, deposition, affidavit, affirmation, or solemn declaration, taken or made before any justice of the peace" (j). (e) Ante, p. 137. (f) Punishment: same as supra. As to forging the seal of a county court or serving any forged process of such court knowing the same to be forged, see 9 & 10 Vict. c. 95, s. 57. See a similar enactment in the Bankruptcy Act, 12 & 13 Vict. c. 106, s. 273; et vide Russell, Cr. 4th ed. ii. 856-7. (g) Sect. 29. Punishment: penal servitude for any term not exceeding seven years and not less than five years,-or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (h) Sect. 30. Punishment: penal servitude for life or for any term not less than five VOL. II. — 53 years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (i) Sect. 31. Punishment: penal servitude for any term not exceeding fourteen years and not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (j) Sect. 32. Punishment: penal servitude for five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. 5. Whosoever, with intent to defraud, shall forge or alter any certificate, declaration of trust, or writing made or purporting or appearing to be made by the accountant-general, or any other officer of the court of chancery, or by any officer of any court, or the name, handwriting, or signature of any such accountant-general, or officer as aforesaid, or shall offer, utter, dispose of, or put off any such certificate, declaration of trust, or writing, knowing the same to be forged or altered (k). 6. Whosoever, without lawful authority or excuse (the proof whereof shall lie on the party accused), shall, in the name of any other person, acknowledge any recognizance or bail, or any cognovit actionem, or judgment, or any deed or other instrument, before any court, judge, or other person lawfully authorized in that behalf (1). process. III. A third offence against public justice is obstructing the execution of lawful process. This is at all times an offence of a very high and presumptuous nature; but more particularly so, when it is an obstruction of an III. Obstructing [141] *arrest upon criminal process. (652) And it has been held, that the party opposing such arrest becomes thereby particeps criminis; that is, an accessory in felony, and a principal in high treason (m). Formerly, one of the greatest obstructions to public justice, both of the civil and criminal kind, was the multitude of pretended privileged places, where indigent persons assembled together to shelter themselves from justice (especially in London and Southwark), under the pretext of their having been ancient palaces of the crown, or the like: all of which sanctuaries for iniquity were demolished, and the opposing of any process therein made highly penal, by the statutes 8 & 9 Will. 3, c. 27, 9 Geo. 1, c. 28, and 11 Geo. 1, c. 22. In regard to certain offences falling within the class before us, it is now enacted as follows: Whosoever shall unlawfully and maliciously, by any means whatsoever, wound, or cause any grievous bodily harm to any person, or shoot at any person, or by drawing a trigger, or in any other manner, attempt to discharge any (k) Sect. 33. Punishment: penal servitude for any term not exceeding fourteen years and not less than five years, or imprisonment for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. (4) Sect. 34. Punishment: penal servitude for any term not exceeding seven years and (652) See State v. Downer, 8 Vt. 424; State v. Buchanan, 17 id. 573; State v. Haily, 2 Strobh. (S. C.) 73; Com. v. Miller, 2 Ashm. 61. To constitute the offense of resisting an officer, it must be shown that the process is legal. People v. Muldoon, 2 Park. 13. But in making an arrest an officer is not bound to exhibit his warrant and read it to the prisoner before securing him, if he resists. Com. v. Cooley, 8 Gray (Mass.), 354. It is a sufficient defense to an indictment for resistance if it appears that the defendant was ignorant that the party resisted was an officer. Johnson v. State, 26 Texas, 117; People v. Muldoon, 2 Park. 13. See Com. v. Kirby, 2 Cush. (Mass.) 577; Com. v. Cooley, 6 Gray (Mass.), 350. But this will not excuse a violent assault. See 2 Whart. Crim. Law, § 1291. As to whether third persons are indictable for resisting or assaulting a mere officer de facto, see State v. Boies, 34 Me. 235; Muir v. State, 8 Blackf. (Ind.) 154; People v. Cook, 8 N. Y. (4 Seld.) 67; People v. Hopson, 1 Denio, 574; Bell v. Tooley, 11 Ired. (N. C.) 605; United States v. Wood, 2 Gallis. 361; Morse v. Colby, 5 N. H. 222; McKim v. Somers, 1 Penn. 297; In re Boyle, 9 Wis. 264. kind of loaded arms, at any person, with intent to resist or prevent the lawful apprehension or detainer of any person shall be guilty of felony (n). Also, whosoever "shall assault, resist, or wilfully obstruct any peace officer in the due execution of his duty, or any person acting in aid of such officer, or shall assault any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence," shall be guilty of a misdemeanor (o). *Besides the foregoing statutory offences, the wilful refusal to aid a peace-officer in the execution of his duty, in order to preserve the peace, is an indictable misdemeanor at common law (p). (653) [* 142] IV. An escape of a person arrested upon criminal process, is also an offence against public justice, for which the party escaping is punishable by fine or imprisonment (q). But the officer permitting such escape, either IV. Escape. by negligence or connivance, is more culpable than the prisoner: the natural desire of liberty pleading strongly in his behalf, though he ought in strictness of law to submit himself quietly to custody, till cleared by the due course of justice. Officers therefore who, after arrest, negligently permit a felon to escape, are punishable by fine (r): but a voluntary escape, by consent and connivance of the officer, is a more serious offence: and for it, before the conviction of the principal party, the officer thus neglecting his duty may be fined and imprisoned (s). Moreover, it is generally agreed that such an escape amounts to the same kind of offence, and is punishable in the same degree, as the offence of which the prisoner is guilty, and for which he is in custody, whether treason, felony, or trespass. And this whether he were actually* committed to gaol, [*143] or only under a bare arrest (t). But the officer cannot be thus punished, till the original delinquent has actually received judgment or been attainted upon verdict, confession, or outlawry, of the crime for which he was so committed or arrested: otherwise it might happen, that the officer (n) 24 & 25 Vict. c. 100, s. 18. Punishment: penal servitude for life, or for not less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement. As to fine and sureties for keeping the peace on conviction for a misdemeanor or felony under the above act, see s. 71. (0) 24 & 25 Vict. c. 100, s. 38. Punishment: imprisonment for not more than two years, with or without hard labour. See, also 8. 27. (p) Reg. v. Brown, 1 C. & Mar. 314. (q) 2 Hawk. P. C. 122. See 14 & 15 Vict. c. 100, s. 29. must also be for a criminal matter. Id. s. 3. And the imprisonment must be continuing at the time of the offence. Id. s. 4; 1 Hale, P. C. 594. Private individuals, who have persons lawfully in their custody, are guilty of an escape if they suffer them illegally to depart, 1 Hale, P. C. 595; but they may protect themselves from liability by delivering over their pris oner to some legal and proper officer. 1 Hale, P. C. 594, 595. Of a private person, thus guilty of an escape, the punishment is fine, or imprisonment, or both. 2 Hawk. c. 20, 8. 6. By the 52 Geo. 3, c. 156, persons aiding the escape of prisoners of war are guilty of felony. Punishment: penal servitude for life, or for not less than five years. (t) 1 Hale, P. C. 590; 2 Hawk. P. C. 134. (653) See The State v. Hailey, 2 Strobh. (S. C.) 73; Comfort v. Com., 5 Whart. (Penn.) 437; Coyles v. Hurtin, 10 Johns. 85; State v. Deniston, 6 Blackf. (Ind.) 277. might be punished for treason or felony, and the person arrested and escaping might turn out to be an innocent man (u). (654) V. Breach of prison. V. Breach of prison by the offender himself, when committed for any cause, was felony at common law (2): or even conspiring to break it (y). But this severity was mitigated by the statute de frangentibus prisonam, 1 Edw. 2, st. 2, c. 1, which enacted that no person should have judgment of life or member for breaking prison, unless committed for some capital offence. To break prison and escape, when lawfully committed for any treason or felony, remains however still felony as at common law (z); and to break prison when lawfully confined upon any other inferior charge, is punishable as a misdemeanor. (655) (u) See the stat. 6 & 7 Vict. c. 26, ss. 22, 23, as to escapes from Milbank prison; 5 & 6 Vict. c. 29, s. 25, as to escapes from Pentonville prison; 1 & 2 Vict. c. 82, ss. 12, 13, as to Parkhurst prison; and 11 & 12 Vict. c. 42, ss. 12-15, as to escaping into the Isle of Man, Ireland, or the Channel Islands. (x) 1 Hale, P. C. 607. (y) Bract. 1. 3, c. 9. (2) Punishment: penal servitude for not more than seven nor less than five years,-or imprisonment for not more than two years, with or without hard labour, and solitary confinement and whipping. 7 & 8 Geo. 4, c. 28, s. 8. (654) Any person who refuses to undergo that punishment which the law imposes upon him, and frees himself there from by an escape from lawful custody, though he does not use force or violence, is guilty of a violation of law, and makes himself amenable to punishment for an offense against public justice. Com. v. Farrell, 5 Allen (Mass.), 130. Neither the negligence nor even the consent of the keeper will justify a prisoner in departing from prison. If he departs, though the doors of his cell are wide open, he commits an offense at common law. State v. Doud, 7 Conn. 384; Riley v. The State, 16 id. 47. And the keeper who, voluntarily or negligently, permits a prisoner to go at large, thereby commits the crime of escape (ib.; Luckey v. State, 14 Texas, 400; Weaver v. Com., 29 Penn. St. 445; Colby v. Sampson, 5 Mass. 310. See Brock v. King, 2 Jones [N. C.], 302; Nall v. The State, 34 Ala. 262; White v. The State, 13 Texas, 133); which is felony or misdemeanor according as that for which the escaping prisoner was confined is the one or the other (Weaver v. Com., 29 Penn. St. [5 Casey] 445; 2 Bish. Crim. Law, § 1105); and at the common law it is to receive the same punishment. Ib. It is unnecessary to prove negligence in the defendant; the law implies it. See Blue v. Com., 4 Watts (Penn.), 215. And it is held that nothing but the act of God or public enemies will be an excuse. State v. Halford, 6 Rich. (S. C.) 58. A jailor's deputies are held to the same degree of responsibility as the jailor himself; but the mere servants of the jailor (who are not deputies), are responsible only for negligence in their particular spheres, or for connivance. State v. Errickson, 3 Vroom (N. J.), 421. See Kavanaugh v. State, 41 Ala. 399; 2 Whart. Crim. Law, § 2609. (655) See Com. v. Briggs, 5 Metc. (Mass.) 559. To constitute the offense of prison breach, the breaking need not be from a public prison. If force be used it is a breach of prison to escape from an officer in the streets. See Luckey v. State, 14 Texas, 400; State v. Doud, 7 Conn. 384. When the imprisonment is unlawful the offense is not perpetrated, even though the prison is broken. But where the imprisonment is lawful, the question of the defendant's guilt or innocence has no bearing whatever on the issue. Com. v. Miller, 2 Ashm. (Penn.) 61. See People v. Washburn, 10 Johns. 160 An indictment lies for an unsuccessful attempt at prison breach. People v. Rose, 12 Johns. 339. Where the breaking out is felony, a person supplying means whereby it is effected, or who waits to carry off the prisoner after the escape, is accessory before or after the fact, as the case may be. In case the breaking out is a misdemeanor, the person so assisting is a principal in the misdemeanor. People v. Tompkins, 9 Johns. 70; 2 Whart. Crim. Law, § 2615, b. VI. Rescue. VI. Rescue is the forcibly and knowingly freeing another from arrest or imprisonment; and for this offence against public justice the party rescuing may be punished as guilty of a misdemeanor, although the principal or person rescued be not convicted (a). If, however, the person rescued be convicted, it is generally the same offence in * the [*144] stranger so rescuing, as it would have been in a gaoler to have voluntarily permitted an escape. A rescue, therefore, of one apprehended for felony, is felony; for treason, treason; and for a misdemeanor, a misdemeanor also. But here likewise, as upon voluntary escapes, the principal must first be attainted, or receive judgment before the rescuer can be thus punished; and for the same reason; because perhaps in fact it may turn out that there has been no offence committed (b). (656) Having reference to the offence before us, the undermentioned enactments must be noticed: By statute 16 Geo. 2, c. 31, s. 2, to convey to any prisoner in custody for treason or felony any arms, instruments of escape or disguise, without the knowledge of the gaoler, though no escape be attempted, or in any way to assist such prisoner to attempt an escape, though no escape be actually made, is felony, and under the statute 28 & 29 Vict. c. 126, s. 37, for this offence the punishment is imprisonment with hard labour for a term not exceeding two years. By statute 25 Geo. 2, c. 37, s. 9, the rescuing or attempting to rescue out of prison any person committed for or found guilty of murder, or any murderer going to or during execution, was made felony. By the 28 & 29 Vict. c. 126, s. 37, the aiding a prisoner in escaping or attempting to escape from prison, or the conveying into prison with intent to facilitate the escape of a prisoner any mask, disguise, letter, or other thing, is likewise felony (c). * [*145] And by the 5 Geo. 4, c. 84, s. 22, the rescuing, or attempting to rescue, or assisting in rescuing a person sentenced to transportation, banishment, or penal servitude (d), who, having been found unduly at large, has been retaken, and is in custody of any officer, to be reconveyed to prison; or causing to be conveyed any disguise, to such offender, is punishable in the same manner as if such person had been confined in a prison. (a) 2 Hawk. P. C. c. 21, s. 8. See 14 & 15 before the passing of the act, liable to imVict. c. 100, s. 29. (b) 1 Hale, P. C. 607; Fost. 344. Before the passing of the 1 & 2 Geo. 4, c. 88, s. 1, the rescuing a person under a commitment for a felony was not a transportable offence, but was punishable only as a felony within clergy at common law. By that act, however, the rescuing or aiding the rescue of a person charged with or committed for felony, or on suspicion thereof, is, if the person rescuing be convicted, and would have been, prisonment, not exceeding one year, punishable with penal servitude for seven or not less than five years, or imprisonment with hard labour for not less than one, and not more than three years. See 20 & 21 Vict. c. 3, s. 2; 27 & 28 Vict. c. 47, s. 2. (c) Punishment; imprisonment with hard labour for not more than two years. (d) See stats. 16 & 17 Vict. c. 99, s. 7; 20 & 21 Vict. c. 3, s. 2; 27 & 28 Vict. c. 47. (656) See State v. Cuthbert, T. U. P. Charlt. (Ga.) 13. The offense is consummated by wresting a prisoner violently from custody, even though the prisoner take no part in the violence. Ib. It is no offense to rescue a prisoner from the hands of a private person unless the rescuer knows that the person rescued was under some arrest. State v. Hilton, 26 Mo. 199. An attempted rescue, which proves unsuccessful, is an indictable offense. State v. Murray, 15 Me. 100. |