DEFORCEMENT. Notify errand if warrant if called part with war legal restrictions. errand, and, if called on, show his warrant (1), unless REQUISITES OF it appear that his errand was known (2); and the parties will be presumed to have known it if they do not known, shew not ask to be informed of it (3). The officer need on. not part with his warrant (4). And if the party, Not bound to without any demand to see it, submit to its execution, rant. the officer is not bound afterwards to shew it (5). Further, the officer must be acting lawfully, not Must not infringe infringing any legal solemnities or restrictions. A messenger executing letters of caption on Sunday, or after he has seen a sist, or suspension; or poinding goods at night, is not deforced if he be prevented from carrying out his purpose (6). But if the pro- Infringing local ceedings be legal, an infringement of mere local usage will not found a defence (7). It is no defence that offer to pay no payment of the debt to which the warrant applied was tendered to the officer, unless he was authorised to receive it. Nor will any statement of prepayment Discharge apor compensation avail, unless vouched by a discharge gence a defence. applicable to the diligence and produced to the officer (8). usage no defence. defence. plicable to dili defeat the officer Fourth, the resistance or violence must relate to Acts must be to the duty the officer is discharging, and be to prevent in his duty. its execution. It is not deforcement if the officer be hindered, by violence resulting from a quarrel with a bystander arising on the spot, or from an attack, the intention of which, however malicious, is merely to 1 Hume i. 390, 391, and cases, of Edmonstone and others: and Sinclair there.-Alison i. 498.-The latter part of this rule does not, of course, apply in the case of revenue officers. 2 Hume i. 390.-Alison i. 497, 498. 3 Hume i. 390, and cases of Gor don: Campbell: Sutherland: and Hamilton and others there.-Alison i. 497, 498, and case of Steel there. 4 Hume i. 391.-Alison i. 498. 6 Hume i. 391, 392, and cases of 7 John Davidson and others, Inverness, April 28th 1821: Shaw 41. 8 Hume i. 393, and cases of Simpson and Duguid there.-Alison i. 500. REQUISITES OF RESISTANCE CONSTITUTE Violence not injure the officer, and not to defeat his attempt to do his duty (1). As regards the force which constitutes the crime, it is not necessary that the officer suffer actual violence. If, on approaching, he be fired at or threatened with fire-arms or other mortal weapons, or Stone-throwing. be attacked with stones, and cannot advance without serious danger, he is deforced, although none of the Even threats of shots or missiles have struck him (2). Nor need there be any demonstration of injury to his person. It is deforcement if he be inveigled or jostled into a room and locked up, or if friends of the person to be arrested surround him, and keep the officer from him in spite of all his efforts to reach him, or if, after he has been arrested, they rescue him (3). injury not neces sary. Confining in room. Surrounding. Rescue. ance. In Passive resist short, if by physical exertions,—even those of passive resistance on the part of the person to be arrested,the officer is prevented from doing his duty, he is deforced (4). If the officer succeed in executing his duty, in spite of the resistance, he is not deforced, however much injured. Deforcement consists in successful opposiBut if the resistance have been successful, Submission after subsequent submission does not free the delinquent from the guilt of his offence (5). offence does not exonerate. PUNISHMENT. tion. The usual punishment of deforcement is imprisonment. Where the offence is accompanied by aggravating circumstances, these generally find expression in additional charges, such as assault, or mobbing and rioting. Under old statutes escheat of moveables is 1 Hume i. 394, and cases of Innes: and Simpson there.--Alison i. 502, 503. More ii. 403. 2 Hume i. 394, 395, and cases of M'Neil: Sutherland: Forbes and Campbell there.-Alison i. 503, 504, and cases of Stewart: and M'Pherson and others there.-More ii. 402. 3 Hume i. 395, and cases of Hamilton and others: Duguid: and Harries there--Alison i. 504. 4 Jas. Hunter and Thos. Peacock, H.C., Jan. 16th 1860; 3 Irv. 518 (Lord Justice-Clerk Inglis' charge). 5 Hume i. 395, 366.-Alison i. 504. a competent punishment, but this is not inflicted in PUNISHMENT. modern practice (1). OBSTRUCTING OFFICERS OF LAW. INTERWOVEN OFFENCES. Acts of this kind are generally accompanied by GENERALLY circumstances which bring them within a different WITH OTHER `category such as assault, or mobbing and rioting. But such a charge is competent by itself (2). The punishment is arbitrary, but would probably not PUNISHMENT. exceed imprisonment. OBSTRUCTING A COURT OF LAW. COURT. Besides the summary manner of punishing attempts OBSTRUCTING to obstruct the proceedings of courts of law, as acts of contempt, it is competent to try them formally. Where there is great tumult, the term mobbing and rioting is applicable, the obstruction of the Court being averred as the purpose of the mob. Acts of molestation specially directed against a Judge sitting in Court are noticed elsewhere. The law extends its Rule applies to protection to those courts, which, from their constitu- recognised by tion, cannot summarily punish persons who obstruct their proceedings. Thus, "obstructing a presbytery "in the discharge of their duty," is an indictable offence (3). The punishment is arbitrary. PRISON-BREAKING. church courts law, PUNISHMENT. ING. A prisoner confined in a public jail, no matter for PRISON-BREAKwhat cause, civil or criminal, commits prison-breaking 1 See Hume i. 397, 398, referring to 1581, c. 118.-1587, c. 85, and 1592, c. 152. 2 See Jas. Hunter and Thos. Peacock, H.C., Jan. 16th 1860; Irv. 518 (Indictment.) 3 John G. Robertson and others, PRISON- Must be from legal contine ment on warrant. if he escape (1). ful and on warrant. But the confinement must be lawEscape by a prisoner placed in jail for security by a constable (2), or by a prisoner confined on a warrant not applicable to him, or palpQuestion where ably informal, is not prison-breaking (3). But if the warrant be formal, defects in or objections to the proceedings of which it is the result, are of no consequence (4). warrant informal. Must be proper jail. The place must be a proper public jail. Escape from a police lock-up, or temporary place of detention, Whole precincts is not prison-breaking (5). But “prison" includes the whole precincts. It is prison-breaking to scale the wall of an exercise yard in a jail (6). included. Mode of no consequence. It is of no consequence whether the escape be by violence (7), or by setting fire to the doors (8), or by using false keys, or corrupting the jailor, or taking advantage of his negligence (9), or even by the prisoner availing himself of the doors of the prison being broken down by a mob from without (10). It is not prisonbreaking to force a passage from one part of a prison Attempt punish to another. But "attempting to break prison" is a relevant charge (11). able. AGGRAVATIONS. There are few instances of charges of aggravation. Where violence is done to the jailor, it would probably be an aggravation, but no such case has occurred (12). In one case, a charge of prison-breaking, especially when committed by means of wilful fire-raising, was held relevant (13). 1 Hume i. 401.-Alison i. 555.- 2 Hume i 403, and case of Inglis 7 Hume i. 401, 402.-Alison i. 8 Jean Gordon or Bryan and others, Aberdeen, April 22d 1841; 2 Swin. 545. 9 Will. Hutton, Ayr, April 13th 1837; 1 Swin. 497 and Bell's Notes 104. 10 Hume i. 402, and case of Ratcliff or Walker there. 11 Rob. Gallie, jun., April 2d 1832; 5 Deas and Anderson 242 and 4 S. J. 409.-Rob. Smith, Perth, Sept. 17th 1863; 4 Iry. 434 and 36 S. J. 3. 12 In the case of Smith in the previous note, the assault was made a separate charge. 13 Neil M'Queen, Inverness, April 1840; Bell's Notes 181. BREAKING. The punishment is either imprisonment or penal PRISONservitude, according to circumstances. BREAKING INTO PRISON TO RESCUE PUNISHMENT. PRISON TO Very few cases of this kind have occurred (1). The BREAKING offence is most heinous when prisoners are liberated. RESCUE. But it cannot be doubted that the attempt is criminal. Attempt. And on the same principle that "breaking part of a "house with intent to enter and steal" is criminal, though the thief have been scared before he had time. to enter the building, so it must be held that if the security of a prison be overcome by part of it being broken down, with intent to rescue prisoners, the person who has effected this, is guilty of an offence. The punishment is arbitrary. BEING AT LARGE BEFORE EXPIRATION OF SENTENCE. PUNISHMENT. AT LARGE WITH CAUSE. dominions. Any person under sentence of penal servitude, CONVICT FOUND found at large without lawful cause, in any part of OUT LAWFUL Her Majesty's dominions, before the expiry of his In Queen's sentence, is liable to penal servitude for life, and to imprisonment with or without hard labour, for any term not exceeding four years, prior to being sent back to penal servitude (2). 1 Hume i. 404, case of Weir and others there.-John Urquhart and others, H.C., Jan. 10th 1844; 2 Broun 13. 2 Act 5 Geo. IV. c. 84 § 22, as amended by 4 and 5 Will. IV. c. |