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96. Misconduct of jurors, referees, etc.

SEO. 96. Every juror or person drawn or summoned as a juror, or chosen arbitrator or umpire, or appointed referee, who either:

1. Makes any promise or agreement to give a verdict or decision for or against any party; or,

2. Willfully and corruptly permits any communication to be made to him, or receives any book, paper, instrument, or information relating to any cause or matter pending before him, except according to the regular course of proceedings; -Is punishable by fine not exceeding five thousand dollars, or by imprisonment in the state prison not exceeding five years. [Amendment, approved March 30, 1874; Amendments 1873-4, 424; took effect July 1, 1874.]

The original was based on Stats. 1856, 220, sec. 10. The amendment omitted, after "pro

ceedings" in subdivision 2, "upon the trial of such cause."

97. Justice or constable purchasing judgment.

SEC. 97. Every justice of the peace or constable of the same township who purchases or is interested in the purchase of any judgment or part thereof on the docket of, or on any docket in possession of, such justice, is guilty of a misdemeanor.

98. Officers to forfeit and be disqualified from holding office.

SEC. 98. Every officer convicted of any crime defined in this chapter, in addition to the punishment prescribed, forfeits his office, and is forever disqualified from holding any office in this state.

99. Superintendent of state printing not to be interested.

SEC. 99. The superintendent of state printing shall not, during his continuance in office, have any interest, directly or indirectly, in any printing of any kind, or in any binding, engraving, or lithographing, or in a contract for furnishing paper or other printing stock or material connected with the state printing; and any violation of these provisions shall subject him, on conviction before a court of competent jurisdiction, to imprisonment in the state prison for a term of not less than two years, nor more than five years, and a fine of not less than one thousand dollars, nor more than three thousand dollars, or by both such fine and imprisonment. [Amendment, approved April 1, 1878; Amendments 1877–8, 11; took effect from passage; repealed conflicting acts.] 100. Corrupt collusion by the superintendent of state printing.

SEC. 100. If the said superintendent of state printing shall corruptly collude with any person or persons furnishing paper or materials, or bidding therefor, or with any other person or persons, or have any secret understanding with him or them, by himself or through others, to defraud the state, or by which the state shall be defrauded or made to sustain a loss, contrary to the true intent and meaning of this act, he shall, upon conviction thereof in any court of competent jurisdiction, forfeit his office, and be subject to imprisonment in the state prison for a term of not less than two years, and to a fine of not less than one thousand dollars nor more than three thousand dollars, or both such fine and imprisonment. [New section, approved April 3, 1876; Amendments 1875–6, 19; took effect from passage.]

Section 5 of an act entitled "An act to amend the Political and Penal codes, concerning public printing, and for other purposes, approved April 3, 1876 (see Amendments 1875-6, 16), embraced sections 99 and 100 See also Pol. Code, sec. 538, and the act of of the Penal Code. That act also amended April 3, 1876, thereafter referred to.

a number of the sections of the Political Code, relating to the public printing; and the refer"" ence in section 100 is intended to be to that act, and not to the Penal Code.

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SEC. 101. Every person who rescues or attempts to rescue, or aids another person in rescuing or attempting to rescue, any prisoner from any prison, or from any officer or person having him in lawful custody, is punishable as follows: 1. If such prisoner was in custody upon a conviction of felony punishable with death, by imprisonment in the state prison not less than one nor more than fourteen years;

2. If such prisoner was in custody upon a conviction of any other felony, by imprisonment in the state prison not less than six months nor more than five years;

3. If such prisoner was in custody upon a charge of felony, by a fine not exceeding one thousand dollars and imprisonment in the county jail not exceeding two years;

4. If such prisoner was in custody otherwise than upon a charge or conviction of felony, by fine not exceeding five hundred dollars and imprisonment in the county jail not exceeding six months.

Rescue is the forcibly and knowingly freeing another from an arrest or imprisonment; and it is generally the same offense in the rescuer as it would have been had the party hav. ing the prisoner in custody voluntarily permitted an escape: 4 Bla. Com. 431. It may be consummated by violently taking a prisoner from custody, even though he should take no part in the violence: 1 Whart. Crim. L., 8th ed., sec.

1680; see State v. Cuthbert, T. U. P. Charlt. 13; Commonwealth v. Filburn, 119 Mass. 297. By the common law, a rescue of one apprehended for a felony was a felony; and for treason, treason: 4 Bla. Čom. 131; 2 Hawk. P. C., c. 18, sec. 10; 1 Whart. Crim. L., 8th ed., sec. 1680. The rescuer must have knowledge that the person rescued was under arrest: State v. Hilton, 26 Mo. 199; see Commonwealth v. Filburn, 119 Mass. 297.

102. Retaking goods from custody of officer.

SEC. 102. Every person who willfully injures or destroys, or takes or attempts to take, or assists any person in taking or attempting to take, from the custody of any officer or person, any personal property which such officer or person has in charge under any process of law, is guilty of a misdemeanor.

CHAPTER III.

ESCAPES, AND AIDING THEREIN.

105. Escapes from state prison.

SEC. 105. Every prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison. [Amendment, approved April 16, 1880; Amendments 1880, 42 (Ban. ed. 379); took effect immediately.]

Escape. The deliverance of a person who is lawfully imprisoned out of prison, before such a person is entitled to such deliverance by law: Bouv. Law Dict., tit. Escape. A party who, being imprisoned, obtains his liberty, either by himself or with the aid of others, without force, is more properly called an escape; but where the party obtains his liberty himself, with force, it is called prison-breaking; and if obtained by the assistance of others, with force, it is commonly called a rescue: 2 Archb. Crim. Pl. 1862; 2 Hawk. P. C., c. 17, sec.

5. Hawkins, speaking of escapes, says: "That as all persons are bound to submit themselves to the judgment of the law, and to be ready to be justified by it, whoever in any case refuses to undergo that imprisonment which the law thinks fit to put upon him, and frees himself from it by any artifice before such time as he is delivered by due course of law, is guilty of a high contempt, punishable with fine and imprisonment: 2 Hawk. P. C., c. 17, sec. 5. It is not necessary, however, that a prisoner should use any artifice or force to be guilty of

an escape. If a prisoner go out of his prison without obstruction, either by the consent or negligence of his jailer, or if he escape in any other manner, without using any kind of force or violence, he is guilty of an escape: Id., c. 18, sec. 9; Riley v. State, 16 Conn. 47. In Arkansas an escape can only be committed by a convict, and to fix that character upon the defendant, the state must prove his conviction by the record, and his personal identity aliunde: State v. Murphy, 10 Árk. 74. An informality in the commitment of a prisoner is no justification for breaking the prison to effect an escape: State v. Murray, 15 Me. 100; Regina v. Waters, 12 Cox C. C. 390. The question of the defendant's guilt or innocence of the crime of which he is charged is not relevant to the issue, on the trial of an indictment for an escape: 2 Hawk. P. C., c. 18, sec. 16; Commonwealth v. Miller, 2 Ashm. 61; see People v. Washburn, 10 Johns. 160. It is enough to sustain the prose

106. Attempt to escape from state prison.

cution if the process is regular: 2 Whart. Crim. L., 8th ed., sec. 1674. Assistance to one breaking prison or escaping from custody is governed by the rules applicable to principals and accessaries. If the prison breach is a felony, a person supplying the means to effect it, or waiting to carry off the prisoner after his escape, is accessary before or after the fact, as the case may be. If a prison breach is a misdemeanor, then a person so assisting is a principal in the misdemeanor: 2 Whart. Crim. L., 8th ed., sec. 1677. See section 109 of this code for the punishment imposed in this state upon a person who assists a prisoner confined in any prison, or in the lawful custody of any officer or person, to escape.

Rescue: Sec. 101, note.

Escape suffered by officers: Sec. 108. Killing escaped prisoner is justifiable when: See sec. 196.

SEC. 106. Every prisoner confined in the state prison for a term less than for life, who attempts to escape from such prison, is guilty of a felony, and on conviction thereof, the term of imprisonment therefor shall commence from the time such convict would otherwise have been discharged from said prison. [Amendment, approved April 16, 1880; Amendments 1880, 42 (Ban. ed. 379); took effect immediately.]

107. Escapes from other than state prison.

SEC. 107. Every prisoner confined in any other prison than the state prison. who escapes or attempts to escape therefrom, is guilty of a misdemeanor.

108. Officers suffering convicts to escape.

SEC. 108. Every keeper of a prison, sheriff, deputy sheriff, constable, or jailer, or person employed as a guard, who fraudulently contrives, procures, aids, connives at, or voluntarily permits the escape of any prisoner in custody, is punishable by imprisonment in the state prison not exceeding ten years, and fine not exceeding ten thousand dollars.

109. Assisting prisoners to escape.

SEC. 109. Every person who willfully assists any prisoner confined in any prison or in the lawful custody of any officer or person to escape, or in an attempt to escape from such prison or custody, is punishable as provided in section one hundred and eight of this code.

110. Carrying into prison things useful to aid in an escape.

SEC. 110. Every person who carries or sends into a prison anything useful to aid a prisoner in making his escape, with intent thereby to facilitate the escape of any prisoner confined therein, is punishable as provided in section one hundred and eight of this code.

111. Costs of trials for escapes or for crimes committed in state prison to be charged against state.

SEC. 111. Whenever a trial shall be had of any person under any of the pro

visions of sections one hundred and five and one hundred and six of this code, and whenever a convict in the state prison shall be tried for any crime committed therein, the county clerk of the county where such trial is had shall make out a statement of all the costs incurred by the county for the trial of such case, and of guarding and keeping such convict, properly certified to by

a superior judge of said county, which statement shall be sent to the board of state prison directors for their approval; and after such approval, said board shall cause the amount of such costs to be paid out of the money appropriated for the support of the state prison to the county treasurer of the county where such trial was had. [New section, approved April 6, 1880; Amendments 1880, 9 (Ban. ed. 130); took effect immediately.]

CHAPTER IV.

FORGING, STEALING, MUTILATING, AND FALSIFYING JUDICIAL AND PUBLIC RECORDS AND DOCUMENTS.

113. Larceny, destruction, etc., of records by officers having them in custody.

SEC. 113. Every officer having the custody of any record, map, or book, or of any paper of proceeding of any court, filed or deposited in any public office, or placed in his hands for any purpose, who is guilty of stealing, willfully destroying, mutilating, defacing, altering or falsifying, removing or secreting the whole or any part of such record, map, book, paper, or proceeding, or who permits any other person so to do, is punishable by imprisonment in the state prison not less than one nor more than fourteen years. Public records, falsification of.-In Matter of Corryell, 22 Cal. 178, it was held that an engrossed copy of a legislative bill of any session prior to that of 1862 was not a public record within the meaning of section 87 of an act concerning crimes and punishments, Hittell's Gen. Laws, sec. 1487, the falsification of which was punishable as provided by that section. In People v. Granice, 50 Cal. 447, the defendant, during the progress of the trial, offered to prove that certain words had been inserted in the indictment, and that certain other words of the indictment had been changed since it was filed and became a record of the court. This offer was refused, and the supreme court, in reviewing this ruling, said: "It is the duty of either party to bring to the attention of the

court any alteration of the record of a pending proceeding promptly, and at the earliest opportunity at which it can be done after the alteration has come to his knowledge. In this case that duty was as incumbent on the prosecution as on the defendant. Although the defendant did not promptly move in the matter, he is not thereby precluded from showing that alterations have been made in the indictment. The indictment, as it stood before the alleged alterations were made, only charged the defendant with the crime of manslaughter; but as altered, it charged him with the crime of murder. The court, under that indictment, had no jurisdiction to try him for any crime other than such as was charged in the indictment when it was filed by the grand jury."

114. Larceny, destruction, etc., of records by other persons.

SEC. 114. Every person not an officer such as is referred to in the preceding section, who is guilty of any of the acts specified in that section, is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding one hundred dollars, or by both.

115. Offering false or forged instruments to be filed of record.

SEC. 115. Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, or registered, or recorded under any law of this state, or of the United States, is guilty of felony. 116. Adding names, etc., to jury lists.

SEC. 116. Every person who adds any names to the list of persons selected to serve as jurors for the county, either by placing the same in the jury-box, or otherwise, or extracts any name therefrom, or destroys the jury-box, or any of the pieces of paper containing the names of jurors, or mutilates or defaces such names so that the same cannot be read, or changes such names on the pieces of paper, except in cases allowed by law, is guilty of felony. [Amendment, approved March 30, 1874; Amendments 1873-4, 425; took effect July 1, 1874.]

117. Falsifying jury lists, etc.

SEC. 117. Every officer or person required by law to certify to the list of persons selected as jurors, who maliciously, corruptly, or willfully certifies to a false or incorrect list, or a list containing other names than those selected, or who, being required by law to write down the names placed on the certified lists on separate pieces of paper, does not write down and place in the jury-box the same names that are on the certified list, and no more and no less than are on such list, is guilty of a felony.

CHAPTER V.

PERJURY AND SUBORNATION OF PERJURY.

118. Perjury defined.

SEC. 118. Every person who, having taken an oath that he will testify, declare, depose, or certify truly before any competent tribunal, officer, or person, in any of the cases in which such an oath may by law be administered, willfully, and contrary to such oath, states as true any material matter which he knows to be false, is guilty of perjury.

Code commissioners' explanation-The commissioners quote the definition of perjury given in the statute of 1850, sec. 82, and after citing numerous special instances in which false swearing would be perjury, say: "To simplify the exisiting law, and expunge from the statutes these multiplied provisions, covering nearly the same ground, a subsequent section (secs. 151, 152, post) declares it to be a misdemeanor to administer or take any oath except in cases there specified. The sections in this subdivision extend the penalties of perjury to violation of all oaths authorized by law, as well as to violations of oaths required. 'Testify, declare, depose, or certify." It is not intended to confine the definition of perjury to testimony and depositions, strictly so called. On the contrary, the section defining perjury is broad enough to embrace every class of statement which by law may be attested by an oath applying to the particular statement, in distinction from the general oath taken by public officers. Nearly every mode of oral statement under oath is embraced by the term 'testify,' and nearly every written one in the term depose.' But as doubts may arise as to the full extension of these terms in peculiar cases, the commissioners have added 'declare' and certify,' in order that all modes of statement may be clearly included." The sections above referred to, 151 and 152, were repealed in 1874.

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Perjury, definition of-At common law, perjury is the taking of a willfully false oath by one who, being lawfully sworn by a competent court to depose the truth in any judicial proceeding, swears absolutely and falsely in a matter material to the point in question, whether he be believed or not: 1 Hawk. P. C., c. 69, sec. 1; 2 Whart. Crim. L., 7th ed., sec. 2198; 3 Russell on Crimes, 1; De Bernie v. State, 19 Ala. 23; Pankey v. People, 1 Scam. 80; Pollard v. People, 69 Ill. 148; Commonwealth v. Grant, 116 Mass. 17; Nelson v. State, 32 Ark. 192.

Materiality. The false oath must be to something material to the issue: People v. Perazzo, 64 Cal. 106; and the evidence given

must be prejudicial to some one; otherwise, however willful it may be, it will not be perjury: People v. McDermott, 8 Id. 288; Plath v. Braunsdorf, 40 Wis. 107. But it need not be the fact directly in issue. If a person falsely and corruptly swears as to any material circumstance which has a legitimate tendency to prove or disprove a material fact, it is perjury: Commonwealth v. Grant, 116 Mass. 17. Where one swearing as to a material fact denies that he had made statements different from his testimony, a charge of perjury may be based upon such denial: People v. Barry, 63 Cal. 63. Where one willfully testifies upon a trial that he has not made certain statements concerning a matter material to the case, when in fact such statements were made by him on the trial of another case, he is guilty of perjury, though the statements made were immaterial in the first case: State v. Mooney, 65 Mo. 494. The false statement must be willfully and corruptly made. Accidental and unintentional false swearing is not perjury: Bell v. Senneff, 83 Ill. 122; Nelson v. State, 32 Ark. 192; United States v. Passmore, 4 Dall. 378. If a witness state the truth to the writer of an affidavit, but the statement is written out erroneously, the witness is not guilty of perjury in swearing to such affidavit, if he did not know it contained the false statements: Jesse v. State, 20 Ga. 156.

Doctrine of materiality in the law of perjury: See an able article bearing this title in 3 Crim. Law Mag. 459.

Not confined to actions in courts.-The word “ case," used in statutes defining the crime of perjury, is not confined to suits or proceedings strictly in court. There are many instances where the laws authorize an oath to be administered when no suit is pending, and the willful taking of a false oath in such instances is perjury: United States v. Volz, 14 Blatchf. 15. But the officer or tribunal administering the oath must have legal and competent authority to do so, or the person taking the oath cannot be convicted, however false the statement may be: Van Dusen v. People, 78 Ill. 645; Biggerstaff v. Commonwealth, 11

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