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-For juror to wilfully and corruptly permit any communication to be made to him relating to any cause or matter pending before him, except according to regular course of proceedings, is penitentiary offense. Matter of Tyler, 64 Cal. 434, 436, 1 Pac. 884.

4. If guilt should be found to attach to members of grand jury in receiving, wilfully and corruptly, any communication except in regular course of proceedings, by means of which their verdict or decision is influenced or attempted to be influenced, jury should be promptly discharged, and matters against members thereof should be referred to another grand jury.-Matter of Tyler, 64 Cal. 434, 436, 1 Pac. 884.

5.

Sending accusatory letter to members of grand jury by attorney.-Sending of letter by an attorney to members of grand jury containing aspersions upon their official conduct concerning case pending before them, and which is intended to and does embarrass administration of justice, is violation of duty which attorney owes to court, and is punishable not only as contempt of court, but as offense against criminal law. Matter of Tyler, 64 Cal. 434, 438, 1 Pac. 884.

6. For an attorney to send accusatory and threatening communications to court or jury while engaged in discharge of their duties is irregular, unlawful, and criminal. -Matter of Tyler, 64 Cal. 434, 436, 1 Pac. 884.

Every

§ 97. JUSTICE OR CONSTABLE PURCHASING JUDGMENT. 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. History: Enacted February 14, 1872.

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relation to public, see Spence v. Harvey, 22
Cal. 336, 341, 83 Am. Dec. 69; San Diego v.
San Diego & L. A. R. Co., 44 Cal. 106, 112.
Ind. Smith v. Moore, 90 Ind. 294. Mass.
Clark v. Easton, 146 Mass. 43, 14 N. E.
795. Mich. Waldron v. Murphy, 40 Mich.
673.
Miss. Shelby v. Alcorn, 36 Miss. 273,
72 Am. Dec. 169. Mont. Ming v. Truett, 1
Mont. 322. N. Y. Wood's Case, 2 Cow. 29.
N. C. Doyle v. Aldermen of Raleigh, 89
N. C. 133, 45 Am. Rep. 677. Fed. Michoud
v. Girod, 45 U. S. (4 How.) 503, 11 L. ed.
1076.

See note, 72 Am. Dec. 180, 181.

§ 98. OFFICERS TO FORFEIT AND BE DISQUALIFIED FROM HOLDING OFFICE. 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.

History: Enacted February 14, 1872.

§ 99. SUPERINTENDENT OF STATE PRINTING NOT TO BE INTERESTED IN ANY CONTRACT CONNECTED WITH HIS OFFICE. PENALTY. The superintendent of state printing shall not, during his continuance in office, [1] have any interest, either directly or indirectly, in any contract in any way connected with his office as superintendent of state printing; nor shall he, during said period, [2] be interested, either directly or indirectly, in any state printing, binding, engraving, lithographing, or other state work of any kind connected with his said office; nor shall he, [3] directly or in directly, be interested in any contract for furnishing paper, or other printing stock or material, to or for use in his said office; and any violations 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 to a fine of not less than one thousand

dollars nor more than three thousand dollars, or by both such fine and imprisonment.

History: Enacted April 3, 1876, Code Amdts. 1875-6, p. 19; amended April 1, 1878, Code Amdts. 1877-8, p. 11; March 27, 1895, Stats. and Amdts. 1895, p. 235.

1. Public officer working for a fixed compensation, or whose fees are prescribed by law, can not demand or contract for any other compensation in the line or scope of his official duty.-Lees v. Colgan, 120 Cal. 262, 265, 40 L. R. A. 355, 52 Pac. 502. See Matter of Russell, 51 Conn. 577, 50 Am. Rep. 55.

See notes, 5 Am. Rep. 55; 40 L. R. A. 355. As to contracts void as against publie policy, and illegal contracts in general, and their effect upon the rights and liabilities of parties, see Kerr's Cyc. Civ. Code (2d ed.), § 1667 and note; also notes, 3 L. R. A. 631; 6 L. R. A. 601-615; 8 L. R. A. 497; 12 L. R. A. 120.

§ 100. SUPERINTENDENT OF STATE PRINTING, PENALTY FOR COLLUSION. If the superintendent of state printing corruptly colludes [1] with any person or persons furnishing paper or materials, or bidding therefor, or [2] with any other person or persons, or [3] has any secret understanding with him or them, by himself or through others, to defraud the state, or by which the state is defrauded or made to sustain a loss, contrary to the true intent and meaning of this chapter, he, upon conviction thereof, forfeits his office, and is 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.

History: Enacted April 3, 1876, Code Amdts. 1875-6, p. 19; amended by Code Commission, Act March 16, 1901, Stats. and Amdts. 1900-1, p. 443, held unconstitutional, see history, § 5, ante; amendment re-enacted March 21, 1905, Stats. and Amdts. 1905, p. 647.

As to illegal contracts in general, see references in note to ante, § 99.

§ 101. Rescuing prisoners.

CHAPTER II.

RESCUES.

§ 102. Retaking goods from custody of officer.

§ 101. RESCUING PRISONERS. Every person who [1] rescues, or [2] attempts to rescue, or [3] 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 convic

tion of felony: by fine not exceeding five hundred dollars and imprisonment in the county jail not exceeding six months.

History: Enacted February 14, 1872, founded on §§ 93, 94 Criminal Practice Act, Stats. 1850, p. 241.

RESCUING PRISONERS.

1. Act of rescuing-Ignorance of rescuer. 2. Custody of private person or officerEffect.

3, 4. Indictment for-Requisites.

As to assisting prisoners to escape, see, post, § 109.

As to carrying into prison things useful to aid in an escape, see, post, § 110.

As to escapes and attempts to escape, see, post, §§ 105 et seq., and notes.

Same-As to costs of trial for escape, see, post, § 111.

1. Act of rescuing a prisoner, done without any knowledge that the person aided was an escaping prisoner, is not punishable.-Commonwealth v. Filburn, 119 Mass.

297, 299.

2. Custody of private person or officerEffect. While the custody of a person in the hands of a public officer would imply notice that the prisoner was lawfully held, and the rescue would be at the peril of a

party making it, the offense would not exist if the rescue was made from the custody of a private person, unless the person making it knew that the prisoner was under arrest for a felony or misdemeanor.-State v. Hilton, 26 Mo. 199, 201.

3. Indictment for-Requisites.-Indictment, under a statute which provides punishment for any person who aids or assists a prisoner in escaping or attempting to escape from an officer or person who has lawful custody of such prisoner, should allege all the facts necessary to bring the case within the intent and meaning of the statute, and it is not sufficient in such a case to merely follow the wording of the statute.-Commonwealth V. Filburn, 119 Mass. 297, 298. See Commonwealth v. Barrett. 108 Mass. 302.

4. Indictment for a rescue should state the nature and cause of the imprisonment of the person alleged to have been rescued, and it should also state whether the person from whom the rescue was made was a public officer or a private person.-State v. Hilton, 26 Mo. 199, 200.

§ 102. RETAKING GOODS FROM CUSTODY OF OFFICER. Every person who wilfully 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.

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§ 105. ESCAPES FROM STATE PRISON, PUNISHMENT OF. Every prisoner confined in a state prison, for a term less than for life, who escapes therefrom, is punishable by imprisonment in a state prison for a term of not less than one year; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison.

History: Enacted February 14, 1872; amended April 16, 1880, Code Amdts. 1880 (Pen. C. pt.), p. 43; March 21, 1905, Stats. and Amdts. 1905, p. 723.

ESCAPE FROM STATE PRISON.

1. As to constitutionality of section.

2. Appeal taken by escaped convict-Dismissed, when.

3, 4. Assisting escape-No offense, when.

5. Attempt to escape-Distinct offense from offense of escaping.

6, 7. Conspiracy to escape-Effect of.

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As to escapes and attempts to escape.-See 2 Am. Crim. Rep. 45, 465; 5 Am. Crim. Rep. 62, 190, 601; 6 Am. Crim. Rep. 31, 88, 525; 8 Am. Crim. Rep. 196; 11 Am. Crim. Rep. 711, 719; 14 Am. Crim. Rep. 343-360.

1. As to constitutionality of section. Invalidity of this section upon the ground that the punishment therein prescribed is such that it operates with manifestly unjust and unwarranted inequality upon the prisoners

adjudged guilty of escaping from prison, and that consequently it is in conflict with the fourteenth amendment of the federal constitution, guaranteeing to all equal protection of the law and certain provisions of the state constitution, raised but not decided.-In re Cook, 13 Cal. App. 399, 401, 110 Pac. 352.

2. Appeal taken by escaped convict-Dismissed, when.-Appeal taken by one convicted of murder who has escaped from custody and is at large, will be dismissed by the supreme court, unless the defendant shall return to custody of the sheriff of the county where he escaped within a time to be ordered by the court.-People V. Elkins, 122 Cal. 654, 655, 55 Pac. 599. See People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; State v. Cody, 119 N. C. 908, 56 Am. St. Rep. 692, 26 S. E. 252.

As to right of escaped convict to appear by counsel, see par. 9, this note.

3. Assisting escape-No offense, when. -When an imprisonment is unlawful, the right of the prisoner to his liberty is absolute, and he who regains it is not guilty of the technical offense of escape, and therefore there can be no such crime as assisting such a prisoner to escape.-People v. Ah Teung, 92 Cal. 421, 427, 15 L. R. A. 190, 28 Pac. 577.

4. Person can not be legally indicted for aiding and assisting another to escape from jail who was not committed under any certain and distinct charge of felony.People v. Washburn, 10 John. (N. Y.) 160, 161.

5. Attempt to escape-Distinct offense from offense of escaping.-The offense of attempting to escape from a state prison described in section 106, is entirely distinct from that described in this section, and even should it be held that this section is unconstitutional, such holding would not

have the effect of holding section 106 unconstitutional, for that section receives no vital force from the provisions of this.In re Cook, 13 Cal. App. 399, 401, 110 Pac. 352.

6. Conspiracy to escape-Effect of.-If several persons confined in state prison conspire to escape therefrom, and, if necessary, to kill any person who shall lawfully attempt to arrest or recapture them, and the death of a person so engaged in the attempt to lawfully arrest or recapture them ensue on the prosecution of such common design, it is murder in all who are present aiding and abetting in the common design to escape.-People v. Wood, 145 Cal. 659, 664, 79 Pac. 367.

7. Under this section it is a crime for any person confined in state prison for a term less than life to escape therefrom, and if two or more persons confined in the prison, only one of whom was sentenced to a term less than life, should conspire together, and agree to a scheme to escape from the prison, all the persons engaged in the conspiracy are engaged in a conspiracy to commit a crime.-People v. Wood, 145 Cal. 659, 664, 79 Pac. 367.

8. Cumulative sentences - Power given by section.-Power of the superior court to impose cumulative sentences exists only in the two cases defined in this section and in section 669, post, and the fact that the legislature has conferred special power to impose cumulative sentences in these two cases only implies the absence of such power in other cases.-Ex parte McGuire, 135 Cal. 339, 343, 87 Am. St. Rep. 105, 67 Pac. 327. See Ex parte Morton, 132 Cal. 346, 64 Pac. 469.

9.

Escaped convict-Right to appear by counsel.—Defendant who has been convicted of crime and who has escaped from custody has no right to appear by counsel in any proceeding in such case or in any appeal therefrom until he has returned into custody, as by breaking jail and escaping he waived the right to have counsel appear for him.-People v. Redinger, 55 Cal. 290, 298, 36 Am. Rep. 32.

As to right of escaped convict to take an appeal, see par. 2, this note.

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liberty, he departed from the prison, and did not come back, such facts happening within the term of his imprisonment, he is guilty of a criminal escape.-Riley v. State, 16 Conn. 47, 51.

13. Section applies exclusively to escape from state prison, and is not applicable to other cumulative sentences.-Ex parte Morton, 132 Cal. 346, 348, 64 Pac. 469.

14. Sentence of escaped prisoner-When to commence.-Where a prisoner has been convicted of two crimes, and a sentence of

imprisonment imposed for each crime, the second sentence to commence upon the termination of the first, and, before the first sentence has expired, he escapes from prison and is arrested and convicted under this section, and sentenced to serve a term to commence from the time he would otherwise have been discharged from prison, the term of imprisonment under the last sentence did not commence until the expiration of the cumulated sentences imposed by the prior two judgments.-Ex parte Irwin, 88 Cal. 169, 170, 25 Pac. 1118.

§ 106. ATTEMPT TO ESCAPE FROM STATE PRISON. 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.

History: Enacted February 14, 1872; amended April 16, 1880, Code
Amdts. 1880 (Pen. C. pt.), p. 42.

ATTEMPT TO ESCAPE FROM STATE

PRISON.

1. Distinguished from escape.

2. Penalty-Not fixed.

3. Waiver of objections.

1.

The of

Distinguished from escape. fense described by this section is one entirely distinct from that prescribed in section 105, and this section is in no manner or degree or to any extent whatsoever dependent for its force or vitality on the provisions of section 105. It receives no vital force from that section, and therefore even conceding that section 105 is void, it does not follow that there can be no penalty imposed for the violation of this section. The penalty prescribed by the two sections is entirely different.-In re Cook, 13 Cal. App. 399, 402, 110 Pac. 352.

2. Penalty not fixed.-While this section declares the act described to be a felony, it does not expressly describe the penalty for the commission thereof, but no difficulty results from this omission since section 18

provides the penalty "except in cases where a different punishment is prescribed by this code." And thus a penalty for the act denounced by this section is as clearly and definitely fixed and prescribed as if the language of section 18 had been expressly referred to in this section. The legislature, in other words, has itself made section 18 a part of this section so far as the penalty is concerned.-In re Cook, 13 Cal. App. 399, 402, 110 Pac. 352.

3.

Waiver of objections.-Where under indictment for escape from state prison drawn under section 105, the accused pleaded guilty to an attempt to escape, the latter crime, being necessarily included within the act of escaping, the plea of guilty waived any defects which might characterize the statement of offense to which the prisoner pleaded guilty and admitting that the indictment might be bad upon demurrer as charging the crime defined in section 105, the objections were waived by the plea of guilty.-In re Cook, 13 Cal. App. 399, 403, 110 Pac. 352.

§ 107. ESCAPES FROM OTHER THAN STATE PRISON. Every prisoner confined in any other prison than the state prison, who escapes or attempts to escape therefrom, is guilty of a misdemeanor.

History: Enacted February 14, 1872.

ESCAPE FROM OTHER THAN STATE
PRISON.

1,2. Person illegally deprived of liberty-
Right to escape.

3. Prisoner unlawfully confined-Right to escape.

Consult, ante, §§ 101, 105 and notes.

As to effect on appeal of escape of prisoner from state prison, see ante, § 105 and note.

1. Person unlawfully arrested-Right to escape. Constable illegally arresting a per

son has no right to retain him in his custody, and such person, being illegally deprived of his liberty, has a right to regain it, and to use such means, force, or resistance as is necessary to that end.-Miers v. State, 34 Tex. Cr. Rep. 161, 186, 53 Am. St. Rep. 705, 29 S. W. 1074.

2. Where constable attempts to make an illegal arrest without capias, person sought to be arrested has right to resist by force, using no more than was necessary to resist the unlawful acts of the officer.— Miers v. State, 34 Tex. Cr. Rep. 161, 186, 53 Am. St. Rep. 705, 29 S. W. 1074.

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