must be lawfully under arrest for a criminal offense.3 The guilt or innocence of the prisoner, however, is immaterial.*

§ 670. Prison breach.-Under the old common law, prison breach was a felony irrespective of the cause of the imprisonment. As said by Justice Peters, "By the ancient common law, prison breaches were felonies, if the party were lawfully imprisoned, for any cause whatever, whether civil or criminal, and whether he were actually within the walls of a prison, or in the stocks, or in the custody of a person who had lawfully arrested him." By an early English statute, however, prison breaches were made misdemeanors in those cases where the prisoners were under arrest for misdemeanors; and this statute is part of our common law.

As stated by Justice Peters, the imprisonment must be lawful. Hence, if the warrant was void and the prisoner uses no more force than is necessary to acquire his liberty the offense is not committed." It is also essential that there be a breaking, but it is sufficient if only slight. Where the prisoner merely climbs over the prison wall he is not guilty of prison breach; but if in doing so he causes a loose stone in the wall to fall he is. In the former case the offense is merely escape. It has been held that a forcible breaking from an officer anywhere constitutes this offense. It seems, however, that this constitutes escape rather than prison breach. The fact that the jail or other place of imprisonment is

8

3 Hitchcock v. Baker, 2 Allen (Mass.) 431. See also, State v. Owens (Mo.), 187 S. W. 1189; Maggard v. Commonwealth, 173 Ky. 97, 190 S. W. 666.

4 State v. Leach, 7 Conn. 452, 18 Am. Dec. 113; State v. Lewis, 19 Kans. 260, 27 Am. Rep. 113.

5 State v. Doud, 7 Conn. 384. 61 Edw. II, Stat. 2.

7 People v. Ah Teung, 92 Cal.

425, 28 Pac. 577, 15 L. R. A. 190; State v. Leach, 7 Conn. 452, 18 Am. Dec. 113; State v. Clark, 32 Nev. 145, 104 Pac. 593, Ann. Cas. 1912C, 754 and note.

8 Rex v. Haswell, Russ. & Ry. 458.

9 State v. Beebe, 13 Kans. 589, 19 Am. Rep. 93; Commonwealth v. Filburn, 119 Mass. 297; Rex v. Stokes, 5 Car. & P. 148.

unhealthy or in a filthy state is no defense to this crime.10 And, as in the case of escape, the guilt or innocence of the prisoner is also no defense.

§ 671. Rescue.-Rescue, like prison breach, is a felony or a misdemeanor according to the crime charged against the prisoner. To constitute this offense the act of the rescuer must result in an actual exit by the prisoner. A mere breaking of the prison is not sufficient. Where the prisoner is unlawfully imprisoned and he breaks out, using no more force than is necessary, and other prisoners escape in consequence, he is not guilty of this offense.11

10 State v. Davis, 14 Nev. 439, 33 Am. Rep. 563.

11 State v. Leach, 7 Conn. 452, 18 Am. Dec. 113.

§ 673. Forcible entry.-Forcible entry consists in violently entering upon real property which is in the occupation of another, without legal authority, and with threats, menaces or force and arms.1

To constitute forcible entry the act must be accompanied by violence, either real or apparent. Actual force, however, is not essential. Where a number of people so terrorize the occupants of the premises by menaces and threats that they give up possession, it is sufficient. On the other hand, actual force which is merely enough to make the entry a mere trespass is not sufficient. As said by Justice Dewey, "To sustain an indictment for a forcible entry, the entry must be accompanied with circumstances tending to excite terror in the owner, and to prevent him from maintaining his right. There must at least be some apparent violence; or some unusual weapons; or the parties attended with an unusual number of people; some menaces, or other acts giving reasonable cause to fear that the party making the forcible entry will do some bodily hurt to those in possession if they do not give up the same. It is the existence of such facts and circumstances, connected with the entry, that removes it from the class of cases of civil injury, to be redressed in actions. of trespass or other civil proceedings, and holds the party thus making an unlawful entry amenable to the public as for 1 State v. Lawson, 123 N. Car.

740, 31 S. E. 667, 68 Am. St. 844; 4

Bl. Comm. 148.

a public wrong." Where the entry is accomplished by mere artifice or trick it is not sufficient to render the act indictable. The fact that statutes provide other remedies for the parties aggrieved does not prevent the offense from being punishable criminally at common law. The preservation of the public peace still requires that the offense be indictable.*

The term "force and arms" does not imply sufficient force to sustain an indictment for this offense; but the additional words, “and with a strong hand," would render the allegation sufficient.5

8 674. Forcible detainer.-Forcible detainer consists in violently keeping possession of lands or tenements, without legal authority, and by means of threats, menaces or force and arms.6

Forcible entry and detainer are both misdemeanors at common law. Though usually referred to conjunctively they are distinct offenses. The offender, however, may be prosecuted for either or both."

To sustain a criminal prosecution, at common law, for forcible entry and detainer, it has been held that both the entry and detainer must be forcible. On the other hand, it has been held that a forcible detainer will relate back to the entry, and if the latter was unlawful, though peaceable, it is sufficient."

By statute, the possessory action of forcible entry and detainer has been extended to certain cases of constructive force, as where a tenant holds over after his term.

2 Commonwealth v. Shattuck, 4 Cush. (Mass.) 141.

3 Rex v. Wilson, 8 Term. R. 357, 362; 3 Chitty Crim. L. 1135 et seq.; 2 Roscoe's Crim. Ev. (8th ed.), 535 et seq.

4 Commonwealth v. Shattuck, 4 Cush. (Mass.) 141.

5 Commonwealth v. Shattuck, 4 Cush. (Mass.) 141; Kilpatrick v.

People, 5 Denio (N. Y.) 277; Rex v. Bake, 3 Burr. 1731.

6 Fults v. Munro, 202 N. Y. 34, 95 N. E. 23, 37 L. R. A. (N. S.) 600; note to 120 Am. St. 33, 34, 56, 66.

7 McMinn v. Bliss, 31 Cal. 122. 8 Vess v. State, 93 Ind. 211. Conroy v. Duane, 45 Cal. 597.

§ 676. Definition.-Libel is a malicious defamation, expressed either in printing or writing, or by signs or pictures, and tending either to blacken the memory of one who is dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule.1 It also has been defined as a censorious or ridiculous printing, writing, picture or sign, made with a malicious or mischievous intent toward government, magistrates or individuals.2 Odgers says that any publication not oral, which exposes a person to hatred, contempt, ridicule or obloquy, or tends to injure him in his business or calling, impair his standing in society or cause him to be shunned or avoided by his neighbors, constitutes a libel.3

§ 677. Gist, requisites.-The gist of this offense is its tendency to provoke retaliation and a breach of the peace.*

11 Hawk. P. C., ch. 73, § 1; 4 B1. Comm. 150; 2 Kent. Comm. 13.

2 People v. Croswell, 3 Johns. Cas. (N. Y.) 354; Steele v. Southwick, 9 Johns. (N. Y.) 215.

3 Odgers, Libel and Slander (1st Am. ed.) 21; State v. Kollar, 93 Ohio St. 89, 112 N. E. 196; Crane v.

State (Okla. Cr.), 166 Pac. 1110; Nicholson v. State, 24 Wyo. 347, 157 Pac. 1013; State v. Haffer, 94 Wash. 136, 162 Pac. 45, L. R. A. 1917C, 610n, Ann. Cas. 1917E, 133.

4 Commonwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212; State V.