State v. Hilton

Jan 15, 1858
Reporters:
Before:
Richardson
Richardson, Judge,

delivered the opinion of the court.

The indictment for a rescue should state the nature and cause of ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​​​​​​​‌‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌‌​‌‌​‌​‌​​​​​​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌‌‌‌​‌‍the imprisonment of the person alleged to have been *201rescued; (1 Russ, on Crimes, 434;) and it should also state whether the person from whom the rescue was made was a public officer or a ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​​​​​​​‌‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌‌​‌‌​‌​‌​​​​​​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌‌‌‌​‌‍private person. (1 Hale P. C. 606.) For, whilst 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 the party making it, the offence would not exist if the rescue was made from the custody of a private person, unless the defendant knew that the prisoner was under ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​​​​​​​‌‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌‌​‌‌​‌​‌​​​​​​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌‌‌‌​‌‍arrest for a felony or misdemeanor.

This indictment neither states the cause of the imprisonment of Comfrey, nor whether Gunter was a public officer, nor, if a private person, that the defendants knew why he ‍​‌​​‌‌​​​‌‌‌‌​‌‌‌‌‌​​​​​​​‌‌​‌​‌​‌​​​‌‌​‌​‌​‌​‌‌​‌‌​​​‌‌‌‌‌​‌‌​‌​‌​​​​​​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌‌‌‌​‌‍had Comfrey in custody.

The indictment was properly quashed, and the other judges concurring, the judgment will be affirmed.