he is in custody for treason or felony, the breach is also felony, and punishable by penal servitude to the extent of seven years; and in the case of a man also by whipping once, twice, or thrice (f). If he is in custody for any other offence, the breach is a misdemeanor, and punishable by fine and imprisonment. There seems also to be this difference between the two cases-in the first, it must be proved that the prisoner escaped; in the second, this is not necessary. To constitute this offence there must be an actual breaking, though it need not be intentional. Merely getting over the wall and the like is an escape only. It will be a sufficient defence to prove that the prisoner has been indicted for the original offence and acquitted; otherwise it is not material whether the accused was guilty of the original offence or not. "Prison" here includes any place where one is lawfully imprisoned, whether upon accusation or after conviction; for example, in the gaol or constable's house. BEING AT LARGE DURING TERM OF PENAL SERVITUDE. Penal servitude was substituted for transportation in the year 1857 (g); but the incidents of the latter attach to the former. servitude. For a convict to be at large without lawful authority, Escape from which it lies on him to prove, before the expiration of penal the term of transportation or penal servitude to which he was sentenced, is a felony punishable by penal servitude even to the extent of life, and previous imprisonment not exceeding four years; or else by imprisonment not exceeding two years (h). (ƒ) 1 Edw. 2, st. 2, c. 1, in Revised Statutes 23 Edw. 1. Stat. de frang. pris. (g) 20 & 21 Vict. c. 3. (h) 5 Geo. 4, c. 84, s. 22; 4 & 5 Wm. 4, c. 67. Rescue. Poundbreach. Obstructing RESCUE. Rescue is the forcibly and knowingly freeing another from arrest or imprisonment. If the original offender is convicted, the rescuer is guilty of the same offence as such original, whether it be treason, felony, or misdemeanor. If the rescuer is thus convicted of felony, the punishment is penal servitude to the extent of seven years, or imprisonment from one to three years (i); if of misdemeanor, fine or imprisonment, or both. If the original is not convicted, nevertheless the rescuer may be punished by fine and imprisonment as for a misdemeanor (j). Rescuing or attempting to rescue a person convicted of murder, whilst proceeding to execution; or rescuing out of prison a person committed for or convicted of murder, is a felony punishable with penal servitude to the extent of life, or imprisonment not exceeding three years (k). Rescuing or attempting to rescue an offender sentenced to penal servitude from a person charged with his removal, is a felony punishable in the same way as if the party had been in gaol (2). Another offence somewhat of the same character, cattle instead of persons being rescued from the custody of the law, is Poundbreach. To rescue cattle distrained for rent or for damage feasant is a misdemeanor at common law, punishable by fine and imprisonment, or both. OBSTRUCTING LAWFUL ARREST, ETC. To prevent the execution of lawful process is at all lawful arrest. times an offence, but more especially so when the (i) 1 & 2 Geo. 4, c. 88, s. I. (j) 2 Hawk. c. 21, s. 8. (k) 25 Geo. 2, c. 37, s. 9; 7 Wm. 4 & 1 Vict. c. 91, s. I. (2) 5 Geo. 4, c. 84, s. 22. It has object is to prevent the arrest of a criminal. An assault upon, resistance to, or wilful obstruction of, a peace officer in the execution of his duty, or any person acting in his aid; or an assault upon any person with intent to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, is a misdemeanor, punishable with imprisonment to the extent of two years (n). Wounding, doing grievous bodily harm to, shooting at, or attempting to shoot at, any person with such intent, is punishable with penal servitude to the extent of life (o). an officer. Not only positively obstructing an officer, but also Refusing to aid refusing to aid him in the execution of his duty in order to preserve the peace, is a crime. The latter offence is a misdemeanor at common law (p). PERJURY. The crime committed by one who, when a lawful Definition. oath is administered to him in some proceeding in a court of justice of competent jurisdiction, swears wilfully, absolutely, and falsely in a matter material to the issue or point in question (q). Such is the definition of perjury at common law. False oaths not The qualification with which it must be taken will amounting to perjury. appear below. Certain other false oaths are attended (m) 2 Hawk. c. 17, s. I. (n) 24 & 25 Vict. c. 100, s. 38. (0) Ibid. s. 18. (p) v. R. v. Brown, C. & M. 314. (q) 3 Inst. 164; v. R. v. Aylett, 1 T. R. 69. F False affirmations. Nature of the oath. by the punishments of perjury, though they are not known by that name. And whenever an Act of Parliament requires an oath to be taken, but does not make it perjury to take a false oath, though not perjury, the taking such oath is a misdemeanor (r); for example, the oath required to be taken before a surrogate in order to obtain a marriage licence (s). It may be necessary to remind the reader that the false affirmation of a Quaker, Moravian, Separatist, or of any other person who is by law authorized to make an affirmation or declaration in lieu of an oath, is on the same footing, and visited with the same consequences, as perjury. The nature of the oath must first be considered: a lawful oath taken in a judicial proceeding, administered within the authority of the tribunal, &c., administering. As a rule it must be taken in a court of justice, but there are apparent exceptions; for example, it has been held perjury for a clergyman to take a false oath against simony at the time of his institution (†). It is inmaterial whether the oath be taken in the face of the court, or out of it by a person authorized to examine matters depending in it, as in the case of affidavits; or whether it be taken in relation to the merits of the cause, or in a collateral matter, for example, on inquiring into the sufficiency of bail (u). The oath must be taken before a person who has jurisdiction of the cause, and lawful authority to administer the oath. Thus, in the case of a trial, taking place where the court has no jurisdiction, a witness cannot be indicted for perjury thereat. Nor if the court, &c., has authority to administer some oath, but not that which is the foundation of the charge. Every court, (r) Fitz. St. 277. (s) R. v. Foster, R. & R. 459. judge, justice, officer, commissioner, arbitrator, or other person now or hereafter having, by law or by consent of parties, authority to hear, receive, and examine evidence, is empowered to administer an oath to all witnesses legally called (x). the oath. The oath must be taken falsely, wilfully, and abso- The taking of lutely; "falsely" refers to the taking of the oath, not to the truth of what is sworn. It is immaterial whether the fact which is sworn be in itself true or false. The question is, Did the defendant believe what he said to be true? If not, he is guilty of perjury. It is not necessary that he should know that it was untrue; for he will be guilty if he swears to the truth, not knowing anything about the matter; much more if he swears to the truth, thinking what he swears is untrue. In other words, he is guilty if his intention can be proved to be to deceive. Thus he will not be innocent, though he swears that he only believes such and such to be the case, if he knows it to be not so. Of course it will be more difficult in such cases to establish the guilt of the defendant (y). As we have just seen, the answer must be given intentionally or wilfully; it must also be given with some degree of deliberation. Mere inadvertence or mistake will not support the charge, as if the witness is bewildered on cross-examination. Of course prevarication, though the actual words used are true, will not shield the defendant; as when a witness assured the court that a man could not live for two hours longer if he went on as he (the witness) left him; the fact being that at the time he was very well, but had got a bottle of gin to his mouth (2). the oath. The matter sworn to must be material to the cause Materiality depending in the court. If the matter is wholly (x) 14 & 15 Vict. c. 99, s. 16. |