execution of one in writing." United States vs. Terry, 41 Federal, 773.

The essential elements of a charge under this section are three: first, the issuance of a legal process, warrant, writ, rule, or order, by a Court of the United States or a United States Commissioner; second, that such legal process, warrant, writ, rule, or order, after the same was issued, was in the hands of some officer of the United States, or other person duly authorized, for service; and, third, that such legal process, warrant, writ, rule, or order was knowingly and wilfully obstructed or interfered with. United States vs. Tinklepaugh, 3 Blatchf., 425. If the Tinklepaugh case seems in a measure to conflict with the Terry case, reason and public justice would seem to demand that the Terry case be the ranking authority.

It must be borne in mind that it is not at all necessary that actual force be used in obstructing. Passive force, such as the congregation of a large number of individuals, knowingly and determinedly, in the way of the officer who is attempting to serve the writ or process, would be within the decisions, and within reason, an obstruction which would come within the statute. Such was the construction used by the Court in charging a grand jury in 2 Curtis, 637; 30 Federal Cases, No. 18250. Obstruction must, therefore, under the authorities, include not only resistance but all impediments or opposition or obstacles, as outlined in the case of the United States vs. McDonald, 8 Biss., 439; 26 Federal Cases, No. 15667. The lexicographers, in treating the word "obstruct," determine it to mean "to impede or retard action; to hinder; to render passage difficult or impossible; to pile up against." The ordinary meaning of the word, therefore, has been accepted in its lawful interpretation, when used in the statute under discussion. The officer is not obliged to risk his life, or expose himself to personal violence. Threats by a person in possession is a violation, as has been determined in United States vs. Lowry, 2 Wash., 169; 26 Federal Cases No. 15636; U. S. vs. Smith, 1 Dill, 212; 27 Federal Cases No. 16333. If one in possession of property opposes and obstructs the execution of a writ of possession by refusing to yield possession, and by threats of violence, he has committed an offense against this statute. United States vs. Lowry, 2 Wash., 169; 26 Federal Cases, No. 15636.

Under this statute, a state jailer who holds Federal prisoners by commitments from United States Courts under the statute of a State, is protected, and a forcible release of a prisoner in his hands would be an offense against this statute, as well as the statute for rescuing a prisoner, which is new Section 143 and old Section 5401. See in this connection, Matthews vs. United States 32 Court of Claims, 123. By following the cases of Blake vs. United States, 71 Federal, 286; United States vs. Mullin, 71 Federal, 682; and United States vs. Cover, 46 Federal, 284, in construing an indictment under this section, there can be no difficulty at arriving at its lawful essentials and ingredients. The allegation of knowledge can be included generally, it is thought, in the words knowingly and wilfully in the first part of the bill, for they will, therefore, be construed to apply to each of the necessary averments of substance, though it may be considered the best pleading, and surely pleading that leaves no room for doubt, if the allegation of knowledge is repeated in the body of the bill, with reference to the process and the person handling the same. In other words, in addition to the general words knowingly and wilfully at the first part of the indictment, let the pleading show that the person charged knew that the person attempting to serve the writ or order was an authorized person, and really had a writ or order from a competent tribunal or Court, as the case may be. In the case of United States vs. McDonald, 8 Biss., page 439, the Court held that the custodian of property for the Marshal was an officer within the meaning of the old Section. In United States vs. Martin, 17 Federal, 150, the Court held under a prosecution for a violation of the old section that a Deputy Marshal was an officer of the United States, within the meaning of the section, as is also the keeper of a State jail, and process issued by a Commissioner of the Circuit Court, under Section 1014 of the Revised Statutes, in causing the arrest or imprisonment of a person, was entitled to the protection of the provisions of the section.

The discussion of the Judge in the 13 Federal, United States vs. Huff, at page 639, of the words "disobedience" and "resistance" under a prosecution for violations of Sections 5359 and 5360, will be found to be in line with the views heretofore expressed with reference to there being no distinction between the definitions of the words as found in

the dictionaries and as found in the decisions of the Courts. Of course, there is no offense when one resists unauthorized arrest. A reasoning under a case of this sort will be found in the case of the United States vs. Mundell, 1 Hughes, 415; 27 Federal Cases, No. 15834.

Blackstone, in his division of crime, made five heads: first, offenses against God and religion; second, offenses against the law of nations; third, offenses against the king and Government; fourth, offenses against the commonwealth, as against public justice, public peace, public trade, public health, public economy; fifth, offenses against individuals—that is, against their persons, their habitations, and their property.

Of course, such division is arbitrary, but serves to furnish a plan for the student and the legislator. The offense we are considering comes under the fourth head, and at Common Law included many things, such as resisting arrest or process, obstructing officers, rescue, escapes, preventing attendance, briberies, perjuries, and contempts, etc. Mr. Bishop says that "no government is perfect, and some are simply terrible, but the worst is immeasurably better than none." ." To interfere, therefore, with the performance of an official function, is a most serious concern, since the public good requires a due performance of all official functions, and any person who interferes therewith is an enemy to the Government.

§ 108a. Advice to Avoid Service of Process May Be Obstruction.-One who advises and induces another to leave the country to avoid service of a grand jury subpoena is guilty of impeding the administration of justice. Heinz vs. U. S., 181 Federal, 323.

§ 109. Destroying or Stealing, Etc., Public Records. Section 128 of the new Code, which changes materially, in both wording and punishment, old Section 5403, reads as follows:

"Whoever shall wilfully and unlawfully conceal, remove, mutilate, obliterate, or destroy, or attempt to conceal, remove, mutilate, obliterate, or destroy, or, with intent to conceal, remove, mutilate, obliterate, destroy, or steal, shall take and carry away any record, proceeding, map, book, paper, document, or other thing filed or deposited with any

clerk or officer of any court of the United States, or in any public office, or with any judicial or public officer of the United States, shall be fined not more than two thousand dollars, or imprisoned not more than three years, or both."

The very wording of the statute itself incorporates the idea that there must be the specific intent to destroy or steal, or do the things denounced by the statute. Wherever the word "wilful" is used, or wherever the context of the statute clearly indicates that it should be read into the body of the Act, such specific intent is absolutely necessary, before the offense can be committed. In United States vs. De Groat, 30 Federal, 764, the facts showed that the Government, for want of space, had stored a vast quantity of old Internal Revenue records in an out-house, from which they were stolen by the defendants, and sold as waste paper to junk dealers. The Court, in instructing a verdict of not guilty, told the jury in substance that the Act was for the specific purpose of the protection of records, and did not carry punishment for mere theft of Government property, and the case not showing any intent on the part of the defendants to destroy records, but only to steal something that belonged to another, would not support an indictment under old Section 5403.

It must be borne in mind, however, that the old Common Law definition of record and document is not to be used in circumscribing and limiting the purpose of the statute under discussion. It was manifestly intended to protect all sorts of Court and public office records, including all papers that are filed, whether such papers be accurately or inaccurately drawn. To this purpose and construction is the case of McInerney vs. United States, 143 Federal, 729, by the Circuit Court of Appeals for the First Circuit. In that case, the Court held in substance that the rule that a criminal or penal statute must be strictly construed does not mean that its language must be given the narrowest interpretation, but contemplates a reasonable construction, in aid of the purposes of the Act, and Courts should adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and objects of the legislature; and, therefore, the statute under consideration, which makes it a criminal offense to steal or destroy any record, paper, or proceeding of a Court of justice, or any

paper or document or record filed or deposited in any public office or with any judicial or public officer, will not be construed so as to limit the meaning of the word "record" and "document" to the technical Common Law record of Courts as unrolled, or to technical documents, but will be used in the ordinary and common sense, and include all and every part, not only of such technical records or documents, but of any paper filed, which becomes a part of the records of the Court or office, and that a prosecution for stealing or destroying a record of a Court cannot be defeated by showing that the record was technically imperfect or incorrectly kept. The following cases may be interesting upon one or the other phases of the statute: People vs. Bussey, 82 Mich., 49; State vs. Bloor, 20 Mont., 574; People vs. Peck, 138 N. Y., 386; ex parte Tongue, 29 Oregon, 48; Georgia vs. Jennings, 50 S. C., 156.

§ 110. Destroying Records by Officer in Charge.Old Section 5408 is practically re-enacted in Section 129, which reads as follows:

"Whoever, having the custody of any record, proceeding, map, book, document, paper, or other thing specified in the preceding section, shall wilfully and unlawfully conceal, remove, mutilate, obliterate, falsify, or destroy any such record, proceeding, map, book, document, paper, or thing, shall be fined not more than two thousand dollars, or imprisoned not more than three years, or both; and shall moreover forfeit his office and be forever afterward disqualified from holding any office under the Government of the United States."

The substance of this section, as well as the substance of Section 128, were in the original Act of February 26, 1853, 10 St. at Large, 170, and are companion statutes. It is necessary, in prosecutions under Section 129, that the party have lawful custody of the record or other document or paper, as the case may be, before the penalty under this statute can be inflicted. In Martin vs. United States, 168 Federal, 198, the Circuit Court of Appeals of the Eighth Circuit held that a Clerk in the office of one who had charge of certain Government records could not be prosecuted under this section, because he was not lawfully "in custody." The meat of that decision is that "custody" means keeping and implies responsibility for the protection and preservation of the person