Commonwealth v. Malloy
119 Mass. 347
Mass.
1876
Check Treatment
Morton, J.

The Municipal Court transmitted to the Superior Court duly authenticated copies of the complaint, conviction and other proceedings in the case, in compliance with the Gen. Sts. c. 173, § 3. The objection, that the descriptions of the offence charged differ in the complaint and in the record of the conviction, is immaterial. The difference is not substantial. If the complaint is sufficient to authorize a verdict and judgment upon it in the Superior Court, the misrecital of it in the record furnishes no ground for dismissing it. Commonwealth v. McCormack, 7 Allen, 532.

The only other reason urged for quashing the complaint is, that it does not allege that the defendant knew that the person alleged to have been rescued was in the lawful custody of a duly authorized officer. The complaint is brought under the Gen. Sts. c. 163, § 11, which provides that “ Whoever forcibly rescues any prisoner held in custody upon any conviction or charge of an offence,” shall be punished as therein provided. This statute does not merely provide a punishment for the common law offence of rescue; it describes and defines the offence which it is intended to punish. Commonwealth v. Lee, 107 Mass. 207. Where a statute embraces all the ingredients of the offence intended to be punished, and the language used describes such offence with legal certainty, an indictment or complaint may well charge the offence in the words of the statute. Commonwealth v. Barrett, 108 Mass. *350302, and cases cited. The words of this statute, “ forcibly rescues any prisoner held in custody,” import an unlawful taking of a prisoner out of custody by force. The purpose was to punish any person who should thus rescue a prisoner, and the statute does not make a knowledge by the rescuer of the authority of the officer one of the ingredients of the offence. This view does not im ■ pugn the general rule of law that in order to make an act criminal it must be done with a criminal intent. A person cannot be convicted unless he effects a rescue by some unlawful act of force. The intent to do such act is a criminal intent, and it is immaterial that he does not know all the consequences of the act. Regina v. Prince, L. R. 2 C. C. 154.

For these reasons we are of opinion that the complaint in this case is sufficient. It alleges with sufficient certainty that Curren was arrested and held in the lawful custody of a police officer duly authorized, for the crime of drunkenness, and that while so in custody the defendant, “ with force and arms, did forcibly rescue and take out of the lawful custody ” of said officer the body of said Curren. These allegations include all the acts necessary to constitute the offence intended to be punished by the statute.

Exceptions overruled.