CHAPTER IL

SECTION 82. Rescue of prisoner.

Rescues.

83. Taking, etc., property in officer's custody.

SECTION 82. Rescue of prisoner.-A person who, by force or fraud, rescues a prisoner from lawful custody, or from an officer or other person having him in lawful custody, is guilty of a felony, if the prisoner was held upon a charge, commitment, arrest, conviction, or sentence of felony; and if the prisoner was held upon a charge, arrest, commitment, conviction, or sentence for misdemeanor, the rescuer is guilty of a misdemeanor.

See subd. 4 of section 14, and section 587 of Code of Civil Procedure. A defendant was not indictable under the former statute, where it did not appear that the prisoner was committed under any distinct and certain charge of felony. People v. Washburn. 10 John., 160.

In People v. Tompkins, 9 Johns., 70, it was held that lying in wait near a jail, by agreement with a prisoner, and carrying him away, was not an offense against the former statute, but a misdemeanor at common law. Whe her such offense is within this section, quare. So, it was held, in People v. Rose, 12 John., 339, that a person confined in jail, who attempted to escape, by breaking the prison, in consequence of which a fellow prisoner, confined for felony, escaped from jail, was guilty of an offense against the former statute, and might be punished with imprisonment in state prison.

§ 83. Taking, etc., property in officer's custody.-A person who takes from the custody of an officer or other person, personal property, in charge of the latter, under any process of law, or who willfully injures or destroys such property, is guilty of a misdemeanor.

See subd. 4 of section 14 and section 587 of Code of Civil Procedure.

CHAPTER III.

Escapes, and Aiding Therein.

SECTION 84. Escaping prisoner may be recaptured.

85. Prisoner escaping.

86. Attempt to escape from state prison.

87. Aiding escape.

88. Same.

89. Officer suffering escape.

90. Id., forfeits office.

91. Concealing escaped prisoner.

92. Definition of prison.

93. Definition of prisoner.

§ 84. Escaping prisoner may be recaptured.-A prisoner, in custody under sentence of imprisonment for any crime, who escapes from custody, may be recaptured and imprisoned for a term equal to that portion of his original term of imprisonment which remained unexpired upon the day of his escape.

See section 186 of Code of Crimiual Procedure.

In cases where, before the expiration of a term of imprisonment, the prisoner escapes, no new award of execution is necessary. Haggerty v. People, 53 N. Y., 478. He may be retaken at any time, and confined under the authority of the original judgment nntil his term has been accomplished. Id.

§ 85. Prisoner escaping.-A prisoner who, being confined in a prison, or being in lawful custody of an officer or other person, by force or fraud escapes from such prison or custody, is guilty of felony if such custody or confinement is upon a charge, arrest, commitment, or conviction for a felony; and of a misdemeanor if such custody or confinement is upon a charge, arrest, commitment or conviction for a misdemeanor.

See notes under section 92, post.

Rights of escaped prisoner.-An escaped prisoner cannot take any action before the court. People v. Genet, 59 N. Y., 80; Keenan ". O'Brien, 23 St. Rep, 478; 53 Hun, 30; McMonagle v. Conkey, 14 id., 326; Matter of O'Byrne, 55 id., 438; 29 St. Rep., 116.

Homicide while attempting to escape.-A charge that the homicide was committed, while the defendant was attempting to escape from jail where he was confined upon a charge of felony, if sustained by proof, renders the kill. ing the crime of murder in the first degree, without regard to the degree of deliberation or premeditation exercised in its commission. People v. Johnson, 110 N. Y., 141; 16 St. Rep., 846.

See People v. Johnson, 46 Hun, 670; 13 St. Rep., 48.

§ 86. Attempt to escape from state prison.-A prisoner confined in a state prison for a term less than for life, who attempts by force or fraud, although unsuccessfully, to escape from such prison, is guilty of felony.

§ 87. Aiding escape.-A person who, with intent to effect or facilitate the escape of a prisoner, whether the escape is effected or attempted or not, enters a prison, or conveys to a prisoner any information, or sends into a prison any disguise, instrument, weapon, or other thing, is guilty of felony, if the prisoner is held upon a charge, arrest, commitment, or conviction for a felony; and of a misdemeanor, if the prisoner is held upon a charge, arrest, commitment, or conviction for a misdemeanor.

See notes under section 82, ante.

§ 88. Aiding escape.-A person who aids or assists a prisoner in escaping, or attempting to escape, from the lawful custody of a sheriff, or other officer or person, is guilty of a misdemeanor, if the prisoner is held under arrest, commitment or conviction for a misdemeanor, or upon a charge thereof; and of a felony, if the prisoner is held under an arrest, commitment, or conviction for a felony, or upon a charge thereof.

See notes under section 82, ante.

$ 89. Officer suffering eseape.-A sheriff, or other officer or person, who allows a prisoner, lawfully in his custody, in any action or proceeding, civil or criminal, or in any prison under his charge or control, to escape or go at large, except as permitted by

law, or connives at or assists such escape, or omits an act or duty whereby such escape is occasioned, or contributed to, or assisted, is

1. If he corruptly and willfully allows, connives at, or assists the escape, guilty of a felony ;

2. In any other case, is guilty of a misdemeanor.

See section 58, ante; sections 114 and 115, post.

What amounts to an escape from civil process. Lovell v. Orser, 1 Bosw., 349; Littlefield v. Brown, 1 Wend., 398; Kellogg v. Gilbert, 10 John., 220; Olmstead v. Raymond, 6 id., 62; Stone v. Woods, 5 id., 182.

§ 90. Officer suffering escape, forfeits office.-An officer who is convicted of the offense specified in the first subdivision of the last section, forfeits his office, and is forever disqualified, to hold any office, or place of trust, honor or profit, under the constitution or laws of this state.

$91. Concealing escaped prisoner.-A person who knowingly or willfully conceals, or harbors for the purpose of concealment, a person who has escaped or is escaping from custody, is guilty of a felony if the prisoner is held upon a charge or conviction of felony, and of a misdemeanor if the person is held upon a charge or conviction of misdemeanor.

$92. Definition of prison.-The term "prison," as used in this chapter, means any place designated by law for the keeping of persons held in custody under process of law, or under lawful

arrest.

The common jail is a prison within the meaning of section 85, ante. People 7. Johnson, 13 St. Rep., 48; 7 N. Y. Cr., 402; 27 W. Dig., 519; aff'd, 16 St. Rep., 846; 110 N. Y.,134.

§ 93. Definition of prisoner.-The term "prisoner," as used in this chapter, means any person held in custody under process of law, or under lawful arrest.

CHAPTER IV.

Forging, Stealing, Mutilating and Falsifying Judicial and Public Records and Documents.

SECTION 94. Injury, etc., to public record.

95. Offering false or forged instruments to be filed or recorded.

§ 94; Injury, etc., to public record. A person who, willfully and unlawfully removes, mutilates, destroys, conceals or obliterates a record, map, book, paper, document, or other thing, filed or deposited in a public office or with any public officer by authority of law, is punishable by imprisonment for not more than five years, or by a fine of not more than five hundred dollars or by both.

What included.-This section makes provision for all cases of injury to returns, whether copies or originals. People v. Wise, 3 N. Y. Cr., 309; 2 How. N. S., 92.

In order to bring a case within this section, it must appear that the instru ment mutilated was filed or deposited with the defendant, as a public officer, by authority of law. Id.

The section does not denounce the mutilation of every paper, but only where the paper is filed or deposited by authority of law." Id.

This section does not cover the case of a messenger, who may not, in certain cases, be a public officer, but may be a mere servant or employe of a public officer.

Id

This section includes not only papers and documents placed in a public office, or with a public officer, for permanent care and preservation, but also those placed there for temporary use or custody. People v. Peck, 22 N. Y. Supp., 576; 67 Hun, 564; 51 St. Rep., 475.

The statistics required to be gathered by the commissioner of labor statistics, including answers to circulars on that subject, are papers deposited with a public officer, by authority of law, within this section. Id.

The willful and unlawful destruction of such papers is a violation thereof. Id.

Not every paper that comes into a public office in the performance of the duties of the officer, who has charge of the office, is within this section. People v. Peck, 52 St. Rep., 913; 138 N. Y., 397. But papers, which a public officer is required to obtain in the discharge of his official duties, which have public importance and are of permanent value and may serve a useful purpose, are, after they have been deposited in his office or with him, under its protection. Id.

A defense, upon the trial of an indictment for destroying them, that they are the private papers of the person sending them, or that the information thus communicated was confidentially disclosed cannot be sustained. Id.

Indictment.-The indictment under this section need not negative the existence of circumstances under which it would be lawful for the commissioner of statistics to destroy public documents in his possession. Id. This is matter of defense, to be established at the trial. Id.

95. Offering false or forged instruments to be filed or recorded. A 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.

CHAPTER V.

Perjury and Subornation of Perjury.

SECTION 96. Perjury.

97. Irregularities in the mode of administering oaths.

98. Incompetency of witness no defense for perjury.

99. Witness's knowledge of materialty of his testimony not neces

sary.

100. Making of deposition, etc., when deemed complete.

101. Statement of that which one does not know to be true.

102. Summary committal of witnesses who have committed perjury. 103. Witnesses necessary to prove the perjury, may be bound over to

appear.

104. Documents necessary to prove such perjury may be detained.

105. Subornation of perjury defined.

106. Punishment of perjury and subornation.

§ 96. Perjury.-A person who swears or affirms that he will. truly testify, declare, depose, or certify, or that any testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed, is true, in an action, or a special proceeding, or upon any hearing, or inquiry, or on any occasion in which an oath is required by law, or is necessary for the prosecution or defense of a private right, or for the ends of public justice, or may lawfully be administered, and who in such action or proceeding, or on such hearing, inquiry or other occasion, willfully and knowingly testifies, declares, deposes, or certifies falsely, in any material matter, or states in his testimony, declaration, deposition, affidavit, or certificate, any material matter to be true which he knows to be false, is guilty of perjury.

See sections 842-849, inclusive, of Code of Civil Procedure.

If a person swears falsely in respect to any fact relevant to the issue being tried, he is guilty of perjury, though the case failed from defect of proof of another fact, and though the other fact alleged had no existence. People v. Grimshaw, 2 N. Y. Cr., 394; 33 Hun, 509; 20 W. Dig., 116; Wood v. People, 59 N. Y., 117.

Oath without knowledge. In order to fasten the guilt of perjury on one who swears to an affidavit of which he does not know the contents, he must have known, at the time he verified it, that he did not know its contents, and he must have willingly made it knowing that he knew nothing about its contents or the facts alleged. Byrnes v. Byrnes, 102 N. Y., 9.

An unqualified statement of that which one does not know to be true is equivalent to a statement of that which he knows to be false. Kane v. City of

Brooklyn, 24 St. Rep.. 539; 114 N. Y., 591; see section 101, post.

To justify a conviction of perjury under this section, it must be shown that the falsity of the testimony was known to the witness at the time it was given. People v. Dishler, 38 Hun, 179; 4 N. Y. Cr., 190. If he testifies under an honest mistake and belief, he is not guilty of perjury. Id.

Claim against city-False stat ments corruptly made in an affidavit to a claim against a city, which was not used before the common council to procure the audit of the claim, do not constitute the crime of perjury, under this section. People v. Allen, 9 St. Rep., 624.

Credibility.-Perjury may be assigned upon false testimony, going to the credit of a witness. People v. Courtney, 94 N. Y., 494; 1 N. Y. Cr., 585.

Police commissioners.-Where the information sought by a question put to a witness is legal and proper to aid the police commissioners in determining the moral fitness of an applicant for a position, a false answer thereto is perjury. People v. Link, 6 N. Y. Cr., 185; 4 N. Y. Supp., 435.

Report. Where a report is made under section 279, chapter 409 of 1882, and the defendant knowing such report to be false, willfully and corruptly makes a false affidavit verifying it, this constitutes perjury under this section. People v. Ostrander, 45 St. Rep, 557; 64 Hun, 335; 19 N. Y. Supp., 327.

It is not necessary to state the facts sworn to in the affidavit of verification itself. Id.

Sheriff's account.-An oath can be lawfully administered to verify and sustain a sheriff's account of the names of persons confined in jail and number and time for which they were supported, and when so administered it is a deposition, declaration, affidavit or certificate necessary to the prosecution or defense of a private right. People v. Bowe, 3 N. Y. Cr., 149; 34 Hun, 528. A false oath to such account is perjury. Id.

Tax sale. This section is broad enough in its provisions to subject a wit ness or deponent to the pains and penalties of perjury, for swearing falsely on a hearing or inquiry before the comptroller, on an application to cancel a tax sale, etc. People ex rel. Ostrander v. Chapin, 105 N. Y., 317; 7 St. Rep., 209.