CHAPTER THE THIRTY-THIRD. OF OBSTRUCTING PROCESS, AND OF DISOBEDIENCE TO ORDERS OF MAGISTRATES.1 SEC. I. Of Obstructing Process. THE obstructing the execution of lawful process is an offence against public justice of a very high and presumptuous nature; and more particularly so when the obstruction is of an arrest upon criminal process. So that it has been holden that the party opposing an arrest upon criminal process becomes thereby particeps criminis : that is, an accessory in felony, and a principal in high treason. (a) And it should seem that the giving assistance to a person suspected of felony and pursued by the officers of justice, in order to enable such person to avoid being arrested, is an offence of the degree of misdemeanor, as being an obstruction to the course of public justice. (b) Thus, an indictment was preferred against the defendant for a misdemeanor in the obstruction of public justice by rendering assistance to one Olive, who was suspected of forgery and pursued by the officers of justice, in order to enable Olive to avoid being arrested. It appeared in evidence that Olive had committed a forgery, as stated in the indictment; and had afterwards, in a state of desperation, thrown himself from the top of a house, by which he was greatly hurt; and that the defendant, who was a relation and commiserated his wretched condition, conveyed him secretly on board a barge from Gloucester to Bristol, and was actively employed at the latter place in endeavouring to enable him to escape from this country in a West India vessel. Advertisements had been printed and circulated, stating the charge against Olive, and offering a large reward for his apprehension: but it was not proved that any one of these advertisements had come to the knowledge of the defendant, or that the defendant was acquainted with the particular charge against Olive, or knew that he had been guilty of forgery, as alleged (a) 4 Black. Com. 128. 2 Hawk. P. C. c. 17, s. 1, where Hawkins submits that it is reasonable to understand the books which seem to contradict this opinion to intend no more than that it is not felony in the party himself, who is attacked in order to be arrested, to save himself from the arrest by such resistance. (b) This position is not warranted by the case; for it states that Olive had committed forgery,' and the position ought to be a person guilty of felony,' instead of 'suspected of felony.' C. S. G. AMERICAN NOTE. 1 See S. v. Hailey, 2 Strob. 73. There must, however, be some active opposition to process in order to constitute the offence Crumpton v. Newman, 12 Ala. 199. in the indictment. Upon this ground the defendant was acquitted: but no other objection was taken to the indictment. (c) 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 pretence of their having been ancient palaces of the Crown, or the like; (d) and it was found necessary to abolish the supposed privileges and protection of these places by several legislative enactments. See the 8 & 9 Will. 3, c. 27, 9 Geo. 1, c. 28, and 11 Geo. 1, c. 22, now in part repealed by the 30 & 31 Vict. c. 59. In some proceedings, particularly in those relating to the execution of the revenue laws, (e) the Legislature has made especial provision for the punishment of those who obstruct officers and persons acting under proper authority. But in ordinary cases, where the offence committed is less than felony, the obstruction of officers in the apprehension of the party will be only a misdemeanor, punishable by fine and imprisonment. (ƒ) A party will not be guilty of the offence of obstructing an officer, or the process which such officer may be about to execute, unless the arrest is lawful. And in an indictment for this offence it must appear that the arrest was made by proper authority. (g) But where the process is regular, and executed by the proper officer, it will not be competent even for a peace officer to obstruct him, on the ground that the execution of it is attended with an affray and disturbance of the peace; for it is an established principle that if one, having sufficient authority, issue a lawful command, it is not in the power of any other, having an equal authority in the same respect, to issue a contrary command; as that would be to legalize confusion. and disorder. (h) The following case upon an indictment for an assault and rescue proceeded upon this principle. Some sheriff's officers having apprehended a man by virtue of a writ against him, a mob collected, and endeavoured by violence to rescue the prisoner. In the course of the scuffle, which was at ten o'clock at night, one of the bailiffs, having been violently assaulted, struck one of the assailants, a woman, and it was thought for some time that he had killed her; whereupon, and before her recovery was ascertained, the constable was sent for, and charged with the custody of the bailiff who had struck the woman. The bailiffs, on the other hand, gave the constable notice of their authority, and represented the violence which had been previously offered to them; notwithstanding which the constable proceeded to take them into custody upon the charge of murder, and at first offered to take care also of their prisoner; but their prisoner was soon rescued from them by the surrounding mob. The next morning, the woman having recovered, the bailiffs were released by the constable. Upon these facts, (c) R. v. Buckle, cor. Garrow, B., Glouces ter Spring Ass. 1821. (d) The White Friars and its environs, the Savoy, and the Mint in Southwark, were of this description. VOL. I. - 56 (e) Ante, p. 277, et seq. (f) 2 Chit. Cr. L. 145, note (a). Heath, J., was clearly of opinion that the constable and his assistants were guilty of the assault and rescue. (i) Where the obstruction of process by the rescue of a party arrested, is accompanied, as is usually the case, with circumstances of violence and assault upon the officer, the offence may be made the subject of a proceeding by indictment; and, as will be shown more fully in a subsequent chapter, (j) the rescue, or attempt to rescue a party arrested on a criminal charge is usually punished by that mode of proceeding. And the offence of rescuing a person arrested on mesne process, or in execution after judgment, subjects the offender to a writ cf rescous, or an action in which damages are recoverable. (k) And it has also been the frequent practice of the Courts to grant an attachment against such wrongdoers, it being the highest violence and contempt that can be offered to the process of the Court. (1) The forcibly rescuing goods distrained, and the rescuing cattle by the breach of the pound in which they have been placed, have been considered as offences at common law, and made the subject of indictment. (m) In a case where a defendant was indicted for rescuing goods distrained for church-rate, it seems not to have been doubted that such a rescue was an indictable offence. (n) It has before been stated, that an indictment will lie for taking goods forcibly, if such taking be proved to be a breach of the peace; (0) but, as a mere trespass, without circumstances of violence, is not indictable; (p) it has been doubted whether even a pound-breach, which has been considered as a greater offence at common law than a rescue, (9) is an indictable offence, if unaccompanied by a breach of the peace. (r) But, on the other hand, it has been submitted that, as a pound-breach is an injury and insult to public justice, it is indictable as such at common law. (s) Where a hayward had distrained a horse damage feasant on an inclosed piece of pasture, and it was rescued from him on the way to the pound, and before it was impounded; it was held that this was not indictable, for till the horse got to the pound the hayward was merely acting as the servant of the owner of the land. (t) (i) Anon. Exeter Sum. Ass. 1793: 1 East, P. C. c. 5, s. 71, p. 305. (j) Post, ch. xxxvi. p. 904. (k) Bac. Abr. tit. Rescue (C.). Com. Dig. tit. Rescous (D.). (7) Bac. Abr. ibid. Com. Dig. tit. Rescous (D.) 6. But, in order to ground an attachment for a rescue, it seems there must be a return of it by the sheriff; at least, if it was on an arrest of mesne process. Bac. Abr. ibid. 2 Hawk. P. C. c. 22, s. 34. Anon. 6 Mod. 141. And see, as to the return of the rescue by the sheriff, Com. Dig. tit. Rescous (D.) 4, (D.) 5. Bac. Abr. tit. Rescue (E.). R. v. Belt, 2 Salk. 586. R. v. Elkins, 4 Burr. 2129. Anon. 2 Salk. 586. R. v. Minify, 1 Str. 642. R. v. Ely, Lord Raym. 35. Anon. 1 Salk. 586. 1 Lord Raym. 589. Apparently an indictment would lie against an unqualified person who had practised as a solicitor in a County Court, for contempt; see R. v. Judge of Brompton County Court (1893), 2 Q. B. 195. (m) Cro. Circ. Comp. 198. 2 Starkie's Crim. pl. 617. 2 Chit. Crim. L. 201, precedents of indictments for rescuing goods distrained for rent; and Cro. Circ. Comp. 199. 2 Chit. Crim. L. 204, 206, precedents of indictments for pound-breaches. Bedfordshire Quarter Sessions, an indictment for pound-breach was presented and tried, the Court acting on the passage in the text. R. v. Butterfield, 17 Cox, C. C. 598. At the (n) R. v. Williams, 1 Den. C. C. 529; the point decided was that the distress warrant was unlawful. (0) Ante, p. 204. Anon. 3 Salk. 187. (p) Ante, p. 204. (q) Mirror of Justices, c. 2, s. 26. (r) 2 Chit. Crim. L. 204, note (b), referring to 4 Leon. 12. (s) 2 Chit. Crim. L. 204, note (b), and the authorities there cited. (t) R. v. Bradshaw, 7 C. & P. 233, Coleridge, J. The learned judge seemed to think that, if the horse had been rescued after it It has been held in Ireland on an indictment for rescuing property distrained for poor-rate, that it is not necessary to prove the making of the rate, or that there is any sum due at the time of making the distress; but the warrant to collect, if in the form and with the requisites required by the Poor-law Act, will be sufficient prima facie evidence of the authority of the collector; and that the section which requires the sum to be collected to be specified in the warrant is satisfied by a reference in the warrant to the collector's book delivered at the time to the collector, and by such reference the book becomes incorporated with the warrant. (u) But where on a similar indictment the warrant was in the same form as in the preceding case, but the occupiers were only described as 'tenants of commons' in the collector's book, it was held that the collector had no authority to distrain on the actual occupier, as the description in the book was insufficient. (v) The 6 & 7 Vict. c. 30, provides for the summary conviction of any person who releases any cattle distrained on any inclosed land. (w) The civil remedy, however, given by the 2 Will. & M. c. 5, s. 4, will, in most cases of a pound-breach, or a rescue of goods distrained for rent, be found the most desirable mode of proceeding, where the offenders are responsible persons. That statute enacts that, upon pound-breach, or rescous of goods distrained for rent, the person grieved shall, in a special action on the case, recover treble damages and costs against the offenders, or against the owner of the goods, if they come to his use. (x) It is laid down in the books that, if a rescue be made upon a distress, &c., for the King, an indictment lies against the rescuer. (y) And we have seen that a lessee, resisting with force a distress for rent, or forestalling or rescuing the distress, will be guilty of the offence of a forcible detainer. (*) SEC. II. Of Disobedience to Orders of Magistrates.1 Disobedience to an order of the justices of the peace at their sessions, made by them in the due exercise of the powers of their juris had been put in the pound, an indictment might have been maintained for the rescue. (u) R. v. Brennan, 6 Cox, C. C. 381. The warrant was headed, 'General warrant to collect and levy poor-rate, Gorey Union,' and directed the collector 'to levy the several poor-rates, and arrears of poor-rates, in the annexed book set forth, from the several persons therein rated, or other persons liable to pay the said rates and arrears of rates,' and was signed by the chairman of the guardians, two guardians, and the clerk of the union at a meeting of the board. (v) R. v. Boyle, 7 Cox, C. C. 428. (w) See the 14 & 15 Vict. c. 92, s. 19, as to these offences in Ireland. As to persons impounding cattle, supplying them with food, see 12 & 13 Vict. c. 92, s. 5, 17 & 18 Vict. c. 60. (r) See, as to the proceedings upon this statute, Bradby on Distresses, 282, et seq. Bac. Abr. tit. Rescue (C.). See 5 & 6 Will. 4, c. 50, s. 75, which imposes a penalty on persons breaking the pound to rescue cattle, &c., found trespassing on highways. (y) F. N. B. (102 (G.). Com. Dig. tit. Rescous (D.), 3. (z) Ante, p. 724. AMERICAN NOTE. 1 Disobedience to orders of magistrates tempt, but it would seem to be indictable, in America is generally dealt with as con- See Bishop, i. s. 240. diction, is an indictable offence. Thus, a party has been holden to be guilty of an indictable offence, in disobeying an order of sessions for the maintenance of his grandchildren. (a) In this case it was moved in arrest of judgment that, as the 43 Eliz. c. 2, s. 7, had annexed a specific penalty, and a particular mode of proceeding, the course prescribed by the Act ought to have been adopted, and that there could be no proceeding by indictment: but, after able argument, and great deliberation, the Court were of opinion that the prosecutor was at liberty to proceed at common law, or in the method prescribed by the statute; and that there could be no doubt but that an indictment would lie at common law for disobedience to an order of sessions. (b) Upon the same principle it was holden that, where an Act of Parliament gave power to the King in council to make a certain order, and did not annex any specific punishment to the disobeying it, such disobedience was an indictable offence, punishable as a misdemeanor at common law. (c) Disobeying an order of one or more justices, when duly made, is also a common-law offence, and therefore punishable by indictment. (d) Thus a power to remove a pauper being given to two justices by the 13 & 14 Car. 2, c. 12, the not receiving him is a disobedience of that statute for which an indictment will lie. (e) And, by Foster, J., 'In all cases where a justice has power given him to make an order, and direct it to an inferior ministerial officer, and he disobeys it, if there be no particular remedy prescribed, it is indictable.' (ƒ) Where an order of justices is a nullity on the face of it, another order may be made, and an indictment will lie for disobeying it. (g) Where such an order is made, any person mentioned in it, and required to act under it, must, upon its being duly served upon him, lend his aid to carry it into effect. Thus where, upon a complaint made by an excluded member of a friendly society, two persons, A. and B., the then stewards of the society, were summoned, and an order made by two justices that such stewards and the other members of the society should forthwith reinstate the complainant; it was holden, that though this order was not served upon A. and B. until they had ceased to be stewards, yet it was still obligatory upon (a) R. v. Robinson, 2 Burr. 799, 800. (b) Id. ibid. See the principles upon which this decision proceeded, ante, p. 192, et seq. By the Epping Forest Amendment Act, 1872,' sect. 5, the Epping Forest commissioners may make orders prohibiting, until after their final report, any inclosure or waste of land within the forest, subject, in their judgment, to any forestal or common rights. The commissioners made a general order prohibiting all persons from committing waste upon a piece of land described until the final report, or until further order; all persons affected to be at liberty to apply to them as there might be occasion. The defendant applied to the commissioners by counsel as a person affected, but they refused to enter into the question raised. The defendant was convicted upon an indictment moved by certiorari for breach of this order. Held, upon a case stated, that the order and (d) R. v. Balme, Cowp. 650. R. v. Fearnley, 1 T. R. 316. (e) R. v. Davis, 1 Bott. 361, pl. 378. Say. 163. Burn's Just. tit. Poor. Sec. XVII., 2, i. (f) Burn's Just., ibid. (g) R. v. Brisby, 1 Den. C. C. 416; 2 C. & K. 962. R. v. Marchant, 1 Cox, C. C. 203. R. v. Cant, 2 M. C. C. 271; C. & Mars. 521. In R. v. Ferrall, 2 Den. C. C. 51, the question was whether, under a clause in the Annual Mutiny Act, a soldier was freed from an indictment for disobeying a bastardy order; and the Court held that he was not, as it was a 'criminal matter;' but the later Mutiny Acts are in different terms. |