OBSTRUCTING JUSTICE

135. It is a misdemeanor at common law to obstruct public or private justice, as by resisting or obstructing an

officer in the exercise of his duty, or preventing attendance of witnesses.

Any willful obstruction of justice by resisting an officer who is endeavoring to perform his official duty is a crime at common law,13 and is also particularly made a crime by statute in many states. A person who resists or obstructs an attempt to make an arrest or maintain the peace,1 or one who prevents the execution of civil process, as, for instance, the levy of a writ of attachment or replevin, is

15

181 Bish. New Cr. Law, § 467; 2 Bish. Cr. Law, § 1009. A constable was stationed at each end of an automobile trap for the purpose of detecting breaches of a motor car act. Defendant, an officer of the Automobile Association, gave signals to the drivers of cars belonging to the association, who were driving beyond the speed limit, to reduce the speed of their cars. It was held that defendant was guilty of obstructing an officer in the execution of his duty. Betts v. Stevens, [1910] 1 K. B. — Cf. Bastable v. Little, [1907] 1 K. B. 59. One who prevented an officer from taking goods was not guilty of obstructing an officer in the discharge of his duty, where the officer was acting without a writ and had no right to take the goods. STATE v. HARTLEY, 74 Conn. 64, 49 Atl. 860, Mikell Illus. Cas. Criminal Law, 235.

14 People v. Ilaley, 48 Mich. 495, 12 N. W. 671; People v. Hamilton, 71 Mich. 340, 38 N. W. 921; State v. Dula, 100 N. C. 423, 6 S. E. 89. Resisting unlawful arrest not punishable. See ante, pp. 270, 272. People v. McLean, 68 Mich. 480, 36 N. W. 231; Merritt v. State (Miss.) 5 South. 386; Hamlin v. Com. (Ky.) 12 S. W. 146.

15 Braddy v. Hodges, 99 N. C. 319, 5 S. E. 17; Com. v. McHugh, 157 Mass. 457, 32 N. E. 650; State v. Barrett, 42 N. H. 466. Resisting attempt to attach exempt property, where no unnecessary force is used, is not punishable. People v. Clements, 68 Mich. 655, 36 N. W. 792, 13 Am. St. Rep. 373. See, also, ante, p. 272. Retaking prop

guilty of obstructing justice. To tamper with witnesses or prevent their attendance is also a crime.1

EMBRACERY

136. Embracery is an attempt to influence a jury corruptly to one side by promises, persuasions, entreaties, money, entertainments, and the like.17

Any corrupt attempt to influence a jury to render their verdict for one side as against the other is a misdemeanor at common law. It may be by offering them money, by using illegitimate persuasions or entreaties, by treating them, or by making promises.18 Of course, arguments of counsel in open court at the trial of a cause are a legitimate use of influence, and are not within the definition; but it would be a crime to take advantage of the opportunity afforded, in order to corruptly influence the jurors.1o Where

erty levied on and left by officer with third person, not obstructing officer. Davis v. State, 76 Ga. 721. Preventing execution sale, State v. Morrison, 46 Kan. 679, 27 Pac. 133.

16 1 Bish. New Cr. Law, § 468. To forge documents for the purpose of securing a pardon is indictable as interfering with the adminis tration of public justice. Rex v. White, 6 S. R. (N. S. W.) 398. So to attempt to mislead board of arbitration authorized by law. Reg. v. Vreones, [1891] 1 Q. B. 360. Under a statute making it a misdemeanor "to knowingly obstruct any officer in serving or attempting to serve any lawful process or order," one is not guilty who merely refuses, upon the demand of a levying officer, to unlock a door of a house in order to enable him to enter the same for the purpose of levying a lawful process upon goods contained therein. State, 113 Ga. 1070, 39 S. E. 435.

Vince V.

2 Bish.

17 4 Bl. Comm. 140; State v. Brown, 95 N. C. 685; New Cr. Law, §§ 384-389; State v. Sales, 2 Nev. 268; Gibbs v. Dewey, 5 Cow. (N. Y.) 503.

18 People v. Myers, 70 Cal. 582, 12 Pac. 719.

19 1 Hawk. P. C. 466; Paul v. City of Detroit, 32 Mich. 108, 118.

an attempt to influence a jury amounting to embracery is made, it is immaterial whether they give any verdict or not, and, if they give a verdict, it is no defense that it is a true verdict. A juror may himself commit this crime if he corruptly attempts to influence the other jurors.

ESCAPE, PRISON BREACH, AND RESCUE

137. The crime of escape is committed

(a) By an officer or other person, having lawful custody of a prisoner, where he voluntarily or negligently

allows him to depart from such custody otherwise than in due course of law.

(b) By a prisoner, where he voluntarily departs from lawful custody without breach of prison.

138. Prison breach is the breaking and going out of his place of confinement by one who is lawfully imprisoned.

139. Rescue is the forcible delivery of a prisoner from lawful custody by one who knows that he is in custody.

Escape 20-Liability of Officer

An officer who voluntarily suffers a prisoner to escape is at common law involved in the same guilt and liable to the same punishment as the prisoner. If the escape is due to the officer's negligence, he is guilty of a misdemeanor only. In order that he may be held criminally liable, however, the prisoner must have been in custody for some criminal matter, and the imprisonment must have been lawful.21 A

20 2 Bish. New Cr. Law, § 1092 et seq.

21 Hitchcock v. Baker, 2 Allen (Mass.) 431. Under a statute de

private person who has lawfully made an arrest is at common law liable equally for an escape as if he were an officer.

Same-Liability of Prisoner

A prisoner who escapes from lawful custody without breach of prison commits a misdemeanor only, whatever may have been the crime for which he was in custody. Consent of the officer having him in custody gives a prisoner no right to escape, and furnishes him no defense. If the warrant of arrest or commitment was void, the prisoner is not liable for escaping; but, if the imprisonment was lawful, his innocence or guilt is immaterial.22 It is no defense that the jail was filthy and unhealthy.23

Prison Breach 24

Under the old common law, any prison breach was a felony, but this was changed by a statute which is part of our common law; 25 and now it is a felony only where the imprisonment was for a felony, and a misdemeanor in other cases. The crime may be committed by one imprisoned on civil process, but in such case it is a misdemeanor only. The question of the prisoner's guilt or innocence is immaterial, but the imprisonment must be lawful, as in case of escape. Where the imprisonment is illegal, as, for instance,

fining "escape" to be voluntarily or negligently permitting a person lawfully confined in jail to leave the prison before he is entitled to be released therefrom, a jailer who permits a prisoner to go at large from time to time is guilty of an escape. Ex parte Shores (D. C.) 195 Fed. 627.

22 State v. Leach, 7 Conn. 452, 18 Am. Dec. 113; State v. Lewis, 19 Kan. 260, 27 Am. Rep. 113.

23 State v. Davis, 14 Nev. 439, 33 Am. Rep. 563.

24 2 Bish. New Cr. Law, § 1070 et seq.

251 Edw. II, Stat. 2.

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where it is under a void warrant, the offense is not committed, provided no more than necessary force is used.20 It is otherwise where the process of commitment is merely informal. There must be a breaking and an exit. Merely climbing over a prison wall is not a prison breach, though it has been said that it is otherwise if a loose stone is thrown from the top of the wall.28 The breaking need not necessarily be from a public prison, but may be from any place of confinement, and it seems that forcible breaking from an officer in the street is sufficient.29 If there is no breaking or force, the crime is merely an escape.

Rescue 80

Rescue is a felony or misdemeanor, according to the crime with which the prisoner is charged. Mere breach of the prison in an attempt to deliver a prisoner is not a rescue, but there must be an actual exit by the prisoner. One who lawfully escapes from imprisonment under a void warrant is not liable because other prisoners lawfully confined escape with him in consequence of his breaking out of the prison.31

26 State v. Leach, 7 Conn. 452, 18 Am. Dec. 113.

27 State v. Murray, 15 Me. 100.

28 Rex v. Haswell, Russ. & R. 458.

29 2 Hawk. P. C. c. 18, § 4; Rex v. Bootie, 2 Burrows, 864; Rex v. Stokes, 5 Car. & P. 148; Com. v. Filburn, 119 Mass. 297; State v. Beebe, 13 Kan. 589, 19 Am. Rep. 93.

30 2 Bish. New Cr. Law, § 1085 et seq.; State v. Garrett, 80 Iowa, 589, 46 N. W. 748.

31 State v. Leach, 7 Conn. 452, 18 Am. Dec. 113.