by law for feloniously stealing property of the value of the advance so converted, or applied, or secreted."1

The separation and conversion to his own use by a carrier, without the assent of the owner, of sundry bars of pig iron, part of a larger number which had been delivered to him for transportation and loaded upon his canal boat, is larceny, and not embezzlement. Where the commodity, a part of which is separated by the carrier from the rest, is transferred in commerce by weight and not by count, the severence is a trespass which determines the privity of contract, and a breaking of bulk equivalent to the opening of a bale or package.2

NOTE. For what is meant by "the breaking of bulk by carriers " question of "Larceny by bailees," post.

(g) Punishment.

see the

The punishment for embezzlement, where the property embezzled amounts in value to twenty-five dollars or upwards, is the same as that prescribed for grand larceny, and where the value. of the property embezzled is less than twenty-five dollars in value, the punishment is that prescribed by statute for petit larceny. In estimating the grade of punishment, the value of any sum of money, payable and due upon any right in action embezzled, is to be deemed its value.3

XIX. ENLISTED MEN-DEFRAUDING AND DRUGGING OF.

Any recruiting agent or other person acting under authority of the State or general government or any local municipality or otherwise, who shall willfully defraud any person enlisting or having enlisted into the military or naval service of the United States of the money to which such person is entitled as pay for such enlistment, or any part of such money, is guilty of a felony; and whoever shall knowingly and willfully use or administer to any person any drug or stupefying substance, with intent, while such person is under the influence thereof, to induce such person to enter the military or naval service of the United States, or of this State, or of any other State, is also guilty of a felony.1

Laws 1865, ch. 729.

Nicholls v. The Peo., 17 N. Y. R., 114. • 2 R. S., 678, § 61. Vide ante, p. 408. Laws 1864, ch. 391, p. 889.

XX. ESCAPES FROM PRISONS AND PRISON BREACH.

An escape is where one who is arrested gains his liberty before he is delivered by the course of the law.1

Where a party effects his own escape by force the offence is usually called prison breaking, and such breach of prison or even the conspiring to break it was felony at the common law, for whatever cause, either civil or criminal, when the party was lawfully imprisoned.2

The general principle was early said to be that all persons are bound to submit themselves to the judgment of the law and to be ready to be justified by it. Those who, declining to undergo a legal imprisonment when arrested on criminal process, free themselves from it by any artifice, and elude the vigilance of their keepers, are guilty of an offence in the nature of a high contempt.3

Where the liberation of the party is effected by himself or others without force, it is more properly called an escape; where it is effected by the party himself with force, it is called prison breaking, and where it is effected by others with force it is commonly called a rescue.4

The Revised Statutes provide for the punishment of escapes from both State and county prisons, and regulate the term of punishment according to the nature of the charge upon which the person was confined, and also according to the kind of prison from which the escape was had or attempted to be made. A portion of these offences are classed among the felonies, while the others are but misdemeanors. The statutes regulating this offence where the punishment is that of a misdemeanor will be spoken of hereafter.5

The following are the sections of the statute where the offence amounts to a felony :

(a) If any person confined in a State prison for any term less than for life shall break such prison and escape from thence, he shall, upon conviction, be punished by imprisonment in a State

1 Russ. on Cr., 416.

2 Id., 427.

4 Black. Com., 129; 2 Hawk. P. C., ch. 17, § 5.

1 Russ. on Cr., 416; 1 Hale, 590; 2 Hawk. P. C., ch. 17, et seq.

4

• Vide post.

prison, the term thereof to commence from and after the expiration of the original term of his imprisonment.1

If any person confined in a county jail upon any conviction for a criminal offence shall break such jail and escape from thence, he shall, upon conviction, be punished by imprisonment in a State prison not exceeding two years, or in a county jail not exceeding one year, to commence from the expiration of his former sentence.2 Under the English statute it was held that the breach of the prison must be an actual breaking, and not such force and violence only as may be implied by construction of law, and if a party go out of a prison through the consent or negligence of the jailor, or if he otherwise escape without using any kind of force or violence, it was said that he was guilty of a misdemeanor only.3

But where the prisoner in getting over a wall threw down some bricks which were placed loose at the top so as to give way. upon being laid hold of, the judges were unanimously of an opinion that this was a prison breach.4

(6) Every person lawfully imprisoned in a State prison for any term less than life who shall attempt by force and violence to any person to escape from such prison, whether such escape be effected or not, shall, upon conviction, be adjudged to imprisonment in a State prison, the term thereof to commence after the termination of the imprisonment to which such person shall have been sentenced at the time of such attempt.5

(c) If any prisoner confined in a county jail or in a State prison, upon a conviction for a criminal offence, shall escape therefrom, he may be pursued, retaken and imprisoned again, notwithstanding the term for which he was sentenced to be imprisoned may have expired at the time when he shall be retaken, and shall remain so imprisoned until tried for such escape, or until he be discharged on a failure to prosecute therefor."

It is criminal in a prisoner to escape from lawful confinement, though no force or artifice be used on his part to effect such purpose. Thus, if a prisoner go out of his prison without any obstruction, the doors being opened by the consent or negligence

12 R. S., 685, § 24.

2 R. S., 685, § 25.

1 Hale, 611; 2 Inst., 590; 1 Russ. on Cr., 429.

Rex v. Haswell, East. T., 1821; Russ. & Ry., 458; 1 Russ. on Cr., 429.

of the jailor, or if he escape in any other manner without using any kind of force or violence, he will be guilty of a misdemeanor, and if his prison be broken by others, without his procurement or consent, and he escape through the breach so made he may be indicted for the escape.1

(d) Every person who shall convey into a State prison, jail or other place of confinement any disguise, instrument, arms, or other thing proper or useful to aid any prisoner in his escape, with intent thereby to facilitate the escape of any prisoner lawfully committed to or detained in such prison, jail or place, for any felony whatever, or on a charge for any felony, whether such escape be effected, or attempted, or not, is guilty of a felony."

Also, every person who shall by any means whatever aid and assist any prisoner lawfully detained in a State prison, or in any jail, or place of confinement for a felony, or on a charge for any felony, to escape therefrom, whether such escape be effected or not, or who shall forcibly rescue any prisoner held in legal custody upon any criminal charge, shall, upon conviction, be punished by imprisonment in a State prison.3

But if any aid and assistance, prohibited by the last section, be rendered by any prisoner detained for any crime in the same jail or place of confinement, with the intent of facilitating his own escape, the punishment of such prisoner shall not exceed that prescribed by law, upon a conviction, for his own escape.*

A prisoner who attempts to escape by breaking the prison, in consequence of which a fellow prisoner confined for felony escapes, is guilty of the mischief of aiding the fellow prisoner to escape, and is punishable under the statute."

Lying in wait near a jail by agreement with a prisoner and conveying him away, is not aiding a person in jail escaping, within the meaning of the statute, though a misdemeanor at common law."

Neither is aiding to escape from jail a prisoner committed on suspicion of having been accessory to the breaking of the house of S, with intent to commit felony, indictable under the statute

' 1 Hale, 611; 2 Inst., 589, 590; Sum., 108; 1 Russ. on Cr., 416.

22 R. S., 684, § 16; Laws 1837, ch. 457.

which makes it an offence to aid the escape of a person detained for any felony, because the prisoner was not committed on any distinct and certain charge of felony.1

XXI. FALSE PRETENCES AND FALSELY PERSONATING OTHERS.

At the common law, a variety of frauds and cheats were punishable, which were described to be deceitful practices in defrauding, or endeavoring to defraud another of his own right by means of some artful device, contrary to the plain rules of common honesty.2

Many of the offences thus enumerated by the older writers, include a variety of injuries, for which the redress of the party injured is, by a civil remedy, and not by criminal prosecution, as the rule now is, that at common law no mere fraud, not amounting to a felony is an indictable offence, unless it affects the public.3

Our statutes, so far as this class of cases, amount to felonies, comprise the false personating of others, and the obtaining of money and other valuable things by false pretences, and are as follows:,

(4) Every person who shall falsely represent or personate another, and in such assumed character, shall:

1. Marry another, or,

2. Become bail or surety for any party in any proceeding, civil or criminal, before any court or officer authorized to take such bail or surety, or,

3. Confess any judgment, or,

4. Acknowledge the execution of any conveyance of real estate, or of any other instrument, which by law, may be recorded, or,

5. Do any other act in the course of any suit, proceeding or prosecution whereby the person so represented or personated may be made liable in any event to the payment of any debt, damages, costs or sum of money, or his rights or interest may in any manner be affected, is guilty of a felony.4

No indictment for the offence described in the first subdivision of the preceding section shall be found, unless upon the complaint

Peo. v. Washburn, 10 John., 160.

• 1 Hawk., ch. 71, § 1.

Peo. v. Gates, 13 Wend., 311; Peo. v. Stone, 9 Id., 182; 6 Mass., 72; Peo. v. Herrick, 13 Wend., 87.

2 R. S., 676, § 50.