Refusing to aid and assist a constable in the execution of his duty, in order to preserve the peace, is an indictable misdemeanor at common law. In order to support such indictment, it must be proved that the constable saw a breach of the peace committed, that there was a reasonable necessity for calling on the defendant for his assistance, and that, when duly called on to do so, the defendant, without any physical impossibility, or lawful excuse, refused to do so. It is no defence that the single aid of the defendant could have been of no avail. (a) Before a party can be guilty of the offence of obstructing an officer in the execution of his duty, the latter must be acting under a proper authority. (b) But if the process is regular, and executed by a proper officer, an obstruction, even by a peace officer, will be illegal, on the established principle that if one having a 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 legalize confusion and disorder. (c) Where an order was made by the Court of Quarter Sessions for payment of a sum of £169 16s. 6d. to F. S., for professional services rendered as an attorney-at-law, and the Clerk of the Peace, contrary to his duty in the matter, refused to record the order, and also to draw up, sign, and deliver to the County Treasurer, an order for payment of such sum to Mr. S, per Cockburn, C. J., this amounted to a misdemeanor in office, and justified the removal of the Clerk of the Peace therefrom. But if the latter thought the Court of Quarter Sessions were doing something illegal and unjustifiable, and if he entertained a belief that, when their attention was called to it, the (a) Reg. v. Brown, C. & Mar., 314; Arch. Cr. Pldg. 684-5. (b) Russ. Cr. 570; Rex v. Osmer, 5 Ea. 304. (c) Russ. Cr. 571. Court would rectify the error, it would be his duty to point out to the Court the mistake into which he supposed they had fallen, and a mere delay or strong remonstrance would not amount to a misdemeanor. But if, from the outset, he determines that, whether the Court agree with him or not, he will not comply with their order, or when he perseveres in disobedience to it, after he has brought the matter before them, he is guilty of a misdemeanor. (a) Disobeying an order made by Justices of the Peace, at their Sessions, in due exercise of the powers of their jurisdiction, is an indictable offence. (b) And, on the same principle, if an Act of Parliament give power to the Queen in Council to make a certain order, and annexes no specific punishment to the disobeying it, such disobedience is nevertheless an indictable offence, punishable as a misdemeanor at common law. (c) So disobedience to an order of one or more Justices is an offence punishable by indictment at common law. (d) Every person mentioned in the order, and required to act under it, should, upon its being duly served upon him, lend his aid to carry it into effect. (e) Escapes.-An escape is where one who is arrested gains his liberty, by his own act, or through the permission or negligence of others, before he is delivered by the course of the law. (f) If the escape is effected by the party himself, with force, it is usually called prison breach; if effected by others, with force, it is commonly called a rescue. (g) If a party in the custody of the law secure (a) Reg. v. Russell, 5 U. C. L. J. N. S. 132, per Cockburn, C. J.; 17 W. R. 402. (5) Russ. Cr. 573; Rex. v. Robinson, 2 Burr, 799-800. (c) Rex v. Harris, 4 T. R. 202; 2 Leach 549. (d) Rex. v. Balme, Cowp., 650; Rex v. Fearnley, 1 T. R. 316; Reg. v. Gould, 1 Salk, 381; Russ. Cr. 574. (e) Ib. 575; Rex v. Gash. 1 Starkie, 41. (f) Russ. Cr. 581. (g) Ib. 581. his own escape, though without force, he is guilty of a high contempt, and punishable by fine and imprisonment. (a) If a prisoner go out through an open door of his gaol, without using any force or violence, he is guilty of a misdemeanor; and it seems any person aiding him in such escape is punishable as for a misdemeanor at common law. (b) In order that an officer may be liable for an escape, the party must be actually arrested, and legally imprisoned for some criminal matter. (c) The imprisonment must also be continuing at the time of the escape, and its continuance must be grounded on that satisfaction which the public justice demands for the crime committed. (d) A voluntary escape is where an officer, having the custody of a prisoner, charged with and guilty of a capital offence, knowingly gives him his liberty, with intent to save him either from his trial or execution. By this offence, the officer is involved in the guilt of the same crime of which the prisoner is guilty, and for which he was in custody. A negligent escape is where the party arrested or imprisoned escapes against the will of him that arrests or imprisons him, and is not freshly pursued, and taken again, before he has been lost sight of. (e) In the case of a voluntary escape, the officer has no more right to re-take the prisoner than if he had never had him in his custody; but in case of negligent escape, if the party make fresh pursuit, he may re-take the prisoner at any time afterwards, whether he finds him in the same or a different county. One W. was brought before Magistrates, in the custody of the defendant, a constable, to answer a charge of misdemeanor; and after witnesses had been examined, he was verbally remanded until the next day. Being then brought up again, and the examination concluded, the Justices decided to take bail, and send the case to the assizes. The prisoner said he could get bail, if he had time to send for them, and the Justice verbally remanded him until the following day, telling the defendant to bring him up then, to be committed or bailed. On that day, the defendant negligently permitted him to escape, for which he was convicted:-Held that W. was not in the custody of the defendant merely for the purpose of enabling him to procure bail, but under the original warrant, and the matter still pending before the Magistrates, until finally disposed of by commitment to custody, or discharged on bail, and that the conviction was proper. (a) When a Sheriff refuses to produce a prisoner in his custody within twenty-four hours after notice, it is an escape, for which an action of debt will lie. (b) It is the duty of the Sheriff of the county in which a city is, and not of the High Bailiff of such city, to convey to the penitentiary prisoners sentenced at the Recorder's Court. (c) It seems that from the moment a prisoner is arrested, until he has actually expiated his offence by serving the full time of imprisonment, he is in the custody of the law for the purposes of the foregoing offences and a person in any way aiding in his escape, before full atonement made, becomes particeps criminis. (d) Prison breach seems now to be an offence of the same degree as that for which the party was confined. (e) Imprisonment is no more than a restraint of liberty, and (a) Reg. v. Shuttleworth, 22 U. C. Q. B. 372. (b) Wragg v. Jarvis, 4 U. C. Q. B. O. S. 317. (e) See 1 Edw. 2 Stat. 2. any place, in which a party may be lawfully confined is a prison within this statute, for it extends to a prison in law as well as a prison in deed. (a) There must be an actual breaking of the prison and not such force and violence only as may be implied by construction of law. (b) The breaking need not be intentional (c); but it must not be from the necessity of an inevitable accident happening without the contrivance or fault of the prisoner. (d) The Prison Act 1865, 28 & 29 Vic. c. 126, s. 37, which prohibits the conveyance into any prison, with intent to facilitate the escape of a prisoner, of certain articles or "any other article or thing," includes a crowbar under the latter words. (e) Parliamentary Offences.-Members of either House of Parliament are not criminally liable for any statements made in the House, nor for a conspiracy to make such statements. (f) An order for an attachment against a member of parliament is illegal and may be set aside though no proceedings have been taken upon it, by the issue of the process or otherwise. (g) So the writ may be set aside before the defendant is actually arrested upon it. (h) A member of parliament is not liable for the penalty imposed by the Con. Stat. Can. c. 3, s. 7, for sitting and voting without having the property qualification required by law. The penalty is only exigible from a person whose incapacity to become a member is decreed by s. 5. and whose election is radically null and void. (i) Members of provincial parliaments are priviliged from arrest in civil cases for a period of forty days, after the proro (a) Russ. Cr. 592. (b) Ib. 594. (c) Rex v. Haswell, Russ. & Ry. 458. (d) Russ. Cr. 594. (e) Reg. v. Payne, L. R. 1 C. C. R. 27; 35 L. J. (M. C.) 170. (f) Ex parte Wason, L. R. 4 Q. B. 573. (g) Reg. v. Gamble, 1 U. C. P. R. 222. (h) Ib. (i) Morasse v. Guevremont, 5 L. C. J. 113. |