cer should set out his authority, the lawfulness of his acts, his command and the defendant's refusal.1 6. Evidence.-Parol evidence is sufficient to show the officer's official character, and he may himself testify.2 The presumption is that he discharged his duty.3 The process and warrant, if there is one, should be produced, and it does not seem absolutely essential that his return should be written on the warrant.5 The return of a rescue is conclusive evidence of such fact. A descriptive averment in the indictment must be proved as laid, but may be disregarded when its omission would not affect the charge against the prisoner. Evidence of a previous escape is and oppose officers in their lawful acts, attempts and efforts to maintain, preserve and keep the peace." Peeple v. Rounds, 67 Mich. 482. If it is alleged in an indictment for an assault on a sheriff that the sheriff, at the time of the assault and impeding, had in his hands a writ of execution against the respondent, which issued on civil process, and that he was about to execute the same by arresting thereon the body of the respondent, it was held not necessary to allege that he had demanded of the respondent payment of the sum due on the execution, nor to allege the place at which the execution was delivered to the sheriff. State v. Hooker, 17 Vt. 658. An indictment for resisting arrest was held good, though it failed to charge that the warrant was in the officer's possession at the time, and failed to show to whom the warrant was delivered by the magistrate. State v. Estis, 70 Mo. 427. In an indictment for a rescue it was held that the principals, arrested under the warrant upon which the indictment was predicated, must first be tried and convicted before the rescuers could be tried or punished. State v. Guthbert, T. U. P. Charlt. (Ga.) 13. no Where an indictment contains matter negating any offence, of course punishment can follow. Rex v. Osmer, 5 East 304, 308. For forms of indictment, see Bish. Dir. & Forms, §§ 836, 843. 1. State v. Shaw, 3 Ired. (N. Car.) 532; State v. Nail, 19 Ark. 563; Comfort v. Commonwealth, 5 Whart. (Pa.) 437; Reg. v. Sherlock, L. R., 1 C. C. 20. For forms, see Bish. Dir. & Forms, §§. 844-847. 2. State v. Zeibart, 40 Iowa 169; Oliver v. State, 17 Ark. 508; Com. v. McCue, 16 Gray (Mass.) 226. 6 And the officer is a competent witness in an action for damage arising from the rescue to show by whom it was committed. Buck:minster v. Applebee, 8 N. H. 546. In a prosecution for resisting an inspector of customs, a warrant of the surveyor appointing him to such office is not sufficient evidence of his appointment to support such indictment, the collector being the only person authorized by law to make such appointments. United States v. Phelps, 4 Day (Conn.) 468. A conviction for resisting an officer cannot be sustained where the evidence fails to show that the person resisted was an officer, or that any offence was committed which would authorize an arrest. Merritt v. State, (Miss. 1889) 5 So. Rep. 386. Generally speaking, the official character may be proved by showing that the officer acted as such, and evidence of this may be by parol. United States v. Sears, i Gall. (U. S.) 215; State v. Zeibart, 40 Iowa 169; Rex v. Gordon, 1 Leach 515. I For the proof of official character, see OFFICERS. See also 1 Bish. Crim. Proc., §. 1130; 2 ibid., §. 891. 3. Putman v. State, 49 Ark. 449: State v. Freeman, 8 Iowa 428; s. c., 74 Am. Dec. 317; in which cases it was held that his failure to do so was a matter of defence. 4. People v. Muldoon, 2 Park. Cr. (N. Y.) 13; Scott v. State, 3 Tex. App. 103. 5. See State v. Moore, 39 Conn. 244; 2 Bish. Crim. Proc., §. 892. 6. Buckminster v. Applebee, 8 N. H. admissible. For decisions in particular cases see note.2 II. OBSTRUCTING AttendancE OF WITNESS.-It is likewise a substantive offence to prevent a witness from attending or from testifying; even if threats are the means used, or calumnious attacks, and whether the attempt is successful or not. The indictment need not set out the record of the case in which the proved. See to the same effect, State v. Sherburne, 59 N. H. 99. 1. Putman v. State, 49 Ark. 449. On the trial of an indictment containing a single count for one offence of assault and battery and resisting an officer in the execution of process, the prosecution, after proving an assault and one act of resistance cannot give evidence of a similar offence committed at another time. People v. Hopson, 1 Den. (N. Y.) 574 2. On the trial of an indictment for a riotous assault upon an officer while serving a legal precept on A, charged with larceny in another State and with being a fugitive from justice, the defendants cannot give evidence that B, who claimed the custody of A as a fugitive slave, had declared, and that the officer knew B had declared, that A had not committed larceny, and that the charge was made merely for the purpose of getting A into his custody, so that he might be taken home. Com. v. Tracy, 5 Met. (Mass.) 536. An allegation that an officer has one in custody to be examined on a charge of larceny is sustained by proof that it was of a larceny in another State, and that the examination was to be with a view to his surrender as a fugitive from justice. Com. v. Tracy, 5Met. (Mass.) 536. Where defendant, under indictment for resisting an officer, alleges that she did not knowingly and wilfully resist the officer in the execution of an order to remove her from the court room, because she was rendered unconscious by the opinion of the court then being pronounced, the jury may consider the fact that she entered the court room with a loaded revolver to hear the decision in a case to which she was a party. United States v. Terry, 42 Fed. Rep. 317. Where defendant snatched the warrant from the hands of the officer and refused to go before the justice who issued it, held that it was proper to exclude evidence offered by defendant for the purpose of showing that he proposed the next morning to go before some other justice. King v. State, 89 Ala. 43. 3. Com. v. Feely, 2 Va. Cas. 1; State v. Carpenter, 20 Vt. 9; Com. v. Reynolds, 14 Gray (Mass.) 87; s. c., 74 Am. Dec. 665; State v. Ames, 64 Me. 386; R. v. Loughran, 1 Crawf. & D. (C. C.) 79; Martin v. State, 28 Ala. 71. 4. Shaw v. Shaw, 31 L. J., Mat. Cas. 35; Lechmere Charleton's Case, 2 My. & Cr. 316; Smith v. Lakeman, 26 L. J. Cr. 305; Littler v. Thompson, 2 Beav. 129. 5. R. v. Onslow, 12 Cox (C. C.) 356. 6. State v. Ames, 64 Me. 386; State v. Carpenter, 20 Vt. 9. One who prevents a witness from appearing against a felon at his trial, though guilty of a misdemeanor, is not an accessory in the felony. Reg. v. Chapple, 9 Car. & P. 355; Robert's Case, 3 Inst. 139. A witness may move to attach a person maliciously and knowingly preventing him from attending. Cameron v. Lightfoot, 2 Will. Bl. 1193; Magnay v. Burt, 5 Q. B. 394. A was charged with violating a United States law. B was a witness for the prosecution, and, after the examination before the commissioner, was bound over to appear as a witness before the grand jury three months afterwards. A caused a fraudulent criminal charge to be brought against B, and the latter was arrested, and by the corrupt connivance of a justice of the peace, was committed under a sentence of imprisonment for six months. One of the objects of the conspirators in the fraudulent charge was to prevent B from appearing and testifying before the grand jury. Held, that the justice was properly proceeded against in the U. S. circuit court by an indictment charging him with corruptly and unlawfully endeavoring to influence, obstruct and impede the due administration of justice, etc. United States v. Kindred, 4 Hughes (U. S.) 493. Defendant was held guilty of violating U. S. Rev. St., § 5399 when he beat one summoned as a witness before a U. S. commissioner for the purpose of intimidating or influencing him in giving witness was cited to appear; 1 nor need it allege on whose behalf the witness was summoned, nor that his testimony was material.2 Nor is it necessary to set out the particular means employed; it is rather the nature of the offence that the accused is entitled to be informed of in the indictment.3 OBSTRUCTION.-See IMPEDE, vol. 9, p. 959; LOGS AND LUMBER, vol. 13, p. 1037; MANDAMUS, vol. 14, p. 206. OBTAIN.-See note 4. his testimony. United States v. Kee, 39 witness, is indictable for aiding, incitFed. Rep. 603. Where one, in the interest of a party to a cause, tries to entrap or corrupt an adverse witness, and the evidence suggests that he was sent on some mission to the witness by an attorney of the party whose interest he sought to promote, the court may charge the jury on the question whether his authority, if he had any, was pure or impure; whether it was limited to the use of proper means to right ends, or extended to the means actually used and to improper ends. Savannah etc. R. Co. v. Holland, 82 Ga. 257. One appearing as a witness before the grand or petit jury to give his testimony must be called and his testimony heard, whether he has been summoned or not; he is therefore a witness within the meaning of Rev. St. of La., §. SSo, providing for the punishment for any one attempting to intimidate any witness in a criminal case in any of the stages of prosecution. State v. Tisdale, 41 La. Ann. 338. And see Reg. v. Flavell, 14 Q. B. D:364; Cutler v. Wright, W. N. (1890) 28. 1. State v. Carpenter, 20 Vt. 9. And see Rex v. Lawley, 2 Stra. 904. 2. Com. v. Reynolds, 14 Gray (Mass.) 87; s. c., 74 Am. Dec.665. "Matter of this sort, which is mere inducement may be given more in general than the gist of the charge.' Bish Cr. Proc., § 897. 2 3. State v. Ames, 64 Me. 386. An indictment alleging that A unlawfully furnished to B, for the use of C, money to induce C unlawfully to absent himself as witness on the trial of an indictment against A, held bad in not alleging that B paid or offered to pay to C said money to induce him to absent himself. State v. Baller, 26 W. Va. 90; s. c., 53 Am. Rep. 66. One who aided, incited and advised a witness not to permit an attachment to be served upon him as a defaulting ing and advising a witness not to answer a subpoena. In such a case, a conviction will not be set aside merely because the indictment charged, .by way of inducement, that the witness had been subpoenaed and made no mention of the attachment, provided it sufficiently charged the essential fact that the accused counselled the witness not to appear and aided him to avoid the officer. Perrow v. State, 67 Miss. 365. For what is sufficient certainty in an information, see Com. v. Feeley, 2 Va. Cas. I. For a form of indictment, see Bith. Dir. & Forms, § 328. 4. "The word 'obtain' (in § 88, 24 & 25 Vict., ch. 96) means an obtaining by the offender from the owner, with an intent on the part of the offender to deprive the owner permanently and entirely of the thing obtained; and it includes cases in which things are obtained by a contract which is obtained by a false pretence, unless the obtaining under the contract is remotely connected with the false pretence." Steph. Cr. 267. See also Rosc. Cr. 449. The word "obtain," in statute against obtaining under false pretences, seems to mean not so much a defrauding or depriving another of his property as the obtaining of some benefit to the party. People v. General Sessions, 13 Hun (N. Y.) 400; Regina v. Garrett, I Sears C. C. 242. See also FALSE PRETENCES, vol. 7. p. 705. "Obtaining Credit."-An undischarged bankrupt "obtains credit" for goods, within § 31, Bankry Act 1883, when he obtains them and does not pay their price; although nothing may be said about credit, or any term of credit, and although there may be no stipulation for credit, and the purchase of goods ostensibly a cash one at the time of the transaction. R. v. Peters, 16 Q. B. D. 636; 34 W. R. 399; 16 Cox, C. C. 36; Rex v. Juby, 3 T. R. 211. OBVIOUS (See also APPARENT, vol. 1, p. 615).—Synonymous with apparent.1 OCCASION; OCCASIONED, ETC.-See note 2. Obtain a Patent.-The primary meaning of "obtain" a patent is the original obtaining from the crown; but a context (e. g., as in § 1, 5 & 6 Wm. IV, ch. 83) may make it to mean "the becoming possessed, either by original grant, by assignment, or by any other title." Russell v. Ledsam, 16 L. J. Ex. 145; 14 M. & W. 588; 16 Ib. 633; 1 H. L. Cas. 687. See also Spilsbury v. Clough, 2 Q. B. 466. Obtained Judgment.-The question which arose in Goodman v. Robinson (18 Q. B. D. 332) was whether the assignee of a judgment debt was a person who has "obtained" the judgment for the purpose of getting a garnishee order under Ord. 45, R. 1, R. S. C., or was that provision only applicable to the person who individually obtained the judgment? It was held that the assignee was such a person. But the assignee of a judgment debt is not a person who has obtained judgment within the meaning of section 419 Eng. Banking Act of 1883. This latter act is in the nature of a penal statute, and the word "obtain" is construed strictly. Ex parte Woodall, 53 L. J., Ch. 966; 13 Q. B. D. 479; Ex parte Blanchett, 17 Q. B. D. 303. 1. Stormouth's Eng. Dict. In remarking upon an instruction which had been asked for and refused in the trial court, HUNTINGTON, J., said: "The word obvious might have received different interpretations by different jurors. Some of them might have supposed it meant the highest attainable certainty; others, that it was to be understood as meaning absolute certainty, to the exclusion of all doubt; and others might suppose it meant reasonable certainty." Stone v. Stevens, 12 Conn. 229. In an Insurance Policy. A person exposes himself to "obvious risk" of injury, within an exception in an accident policy (1), if the risk is obvious to him at the time he exposes himself to it; or (2) if it would be obvious if he were paying reasonable attention to what he is doing. Cornish v. Accident Ins., L. R., 23 Q. B. D. 453. An Obvious Imitation Within a Patent Law-An "obvious" imitation within section 58, Patents Registration Act, 1883. does not mean obvious to the un educated or unskilled eye, but obvious to a judge or jury sitting as experts. Mitchell v. Henry, 15 Ch. D. 181; Grafton v. Watson, 50 L. T. 420; 51 Ib. 141. In the expression "obvious imitation" in a patent act, "obvious" does not mean obvious at a glance to the uneducated and unskilled eye, but obvious to a judge or jury, with the assistance of experts; and the test is not merely to look at the two designs side by side (though that is one element of comparison), but consideration should also be given to what would be the effect supposing they were seen at different times or looked at a little distance off. Winslow on Artistic Copyright 77, and cases cited. Where the merit of a copyrighted design for a range door lay in attaching the moulding to the door instead of to the fire cover, another design differing from the above only in that the moulding on the door overlapped the mould ing on the front of the range, was held an "obvious imitation" of the former design and an infringement of it. Walker v. Hecla Co., 15 Ct. Sess. Cas. (Sc.) 4th ser. 660. 2. A man cannot be convicted of an assault "occasioning bodily harm" on his wife by reason of his communicating to her a venereal disease, of which he was aware and she unaware. Reg. v. Clarense, 59 L. T., N. S. 780. A loss by fire cannot be said to be "occasioned" by camphene, within an exception in a policy, because a fire originating independently of that article is rendered less controllable and more destructive by it. Camphene must be the primary cause of the loss in order to absolve the company from responsibility. But it is not necessary that the fire which produces the loss should have been originated by camphene. If the fire, although it existed, would have been wholly innocuous but for its having come in contact with the camphene, the loss which ensues may properly be said to have been caused by camphene. Harper v. New York City Ins. Co., 22 N. Y. 441, 447. Where the husband, without other consideration, conveys land in trust that it shall be conveyed to his wife, and the trustee, without consideration, OCCUPANCY (See also OCCUPY; OCCUPANT; OCCUPANCY; vol. 3, p. 171, TITLE BY USE AND OCCUPATION).-Occupation or occupancy is said to arise out of "actual possession and manurance of the land;" actual control of corporeal property.1 conveys to the wife accordingly, the conveyance to the wife is "occasioned by the payment or pledge of the property of the husband," within the meaning of those terms in a statute authorizing the wife to hold to her separate use property conveyed to her during marriage. Vogt v. Ticknor, 48 N. H. 242. When delay in the sale of personal property is caused by an injunction, and the depreciation in the salable value of the property is an incident of the delay, the loss, within the meaning of a statute, is held to be "occasioned" by the injunction. Meysenburg v. Schlieper, 48 Mo. 426. An injury to a horse is not "occasioned by plunging (within a carrier's exemption) if the animal is made to plunge by actionable negligence. Per FITZ GIBBON, L. J. Sheridan v. Mid. Great Western R., 24 L. R., Ir. 173. "As Occasion Shall Require."-When A conferred authority on B "to accept for me and in my name bills drawn or charged on me by my agents or correspondents, as occasion shall require," C, a partner of A, drew a bill upon him for partnership purposes, which B accepted; and the question was whether B was authorized under the above power to accept the bill drawn by C. It was held that he had not, and that the words "as occasion shall require" "do not vary the question." Atwood v. Munnings, 7 B. & C. 278; 1 A. E., C. L. 44. 1. Vin. Abr. "occupancy," H. See further Co. Litt. 249b; Abb. L. Dict. The words "possession" and "occupancy," as used in § 216 of the Illinois revenue act (Rev. Stat. 1874, p. 895), are clearly convertible, and the word actual qualifies each. Taylor v. Wright, 121 Ill. 455. "Occupancy and possession," say the court in Waters v. People, 21 Ill. 178, "when applied to land are merely sy nonymous, and may, in contemplation of law, exist in the same manner by and through a tenancy. See also Redfield 7. Utica etc. R. Co., 25 Barb. (N. Y.) 58; Bishop of Nesqually v. Gibbon (Wash. Ter.), 21 Pac. Rep. 315; Smith 7. Sanger, 4 N. Y. 577; Walters v. People, 18 Ill. 194; 65 Am. Dec. 730. "Occupation" and "possession" are used in contrast in §§ 18 and 26, Reform Act, 1832 (2 W. IV, ch. 45); and whilst under the latter section an Owner of a rent charge in fee would be entitled to qualify for a county vote, after having been for the prescribed time in the actual "possession" of the rent charge, yet if being only entitled for life he is, by the circumstances, driven to claim as for its "actual and bona fide occupation" under section 18, then he will fail, because a rent charge is incapable of such occupation. Druitt v. Christchurch, 12 QB. D. 365. By the term "occupation" is meant, use or tenure. Fleming v. Maddox, 30 Iowa 242. "The word 'occupation' may be so used in connection with other expressions, or under peculiar facts of a case, as to signify a residence. But ordinarily, the expressions 'occupation, possessio pedis,' 'subjection to the will and control,' are employed as synonymous terms, and as signifying actual possession." MORTON, J., in Lawrence v. Fulton, 19 Cal. 688; McKenzie v. Brandon, 71 Cal. 211. See also Plume v. Seward, 4 Cal. 96; Jackson v. Halsted, 5 Cow. (N. Y.) 219; Jackson v. Woodruff, 1 Cow. (N. Y.) 285: Mourilyan v. Labalmondiere, 1 El. & E. 533; Jackson v. Shoonmaker, 2 Johns. (N. Y.) 234; People v. Ambrecht, 11 Abb. Pr. (N. Y.) 97; Bailey v. Irby, 2 Nott. & M. (S. Car.) 343. Occupation includes possession as its primary element, but it also includes something more. Legal possession does not of itself constitute occupation. The owner of a vacant house is in possession. If, however, he furnishes it and keeps it ready for habitation whenever he pleases to go to it, he is an occupier, though he may not reside in it one day in the year. Reg. v. St. Pancross Assmt. Co., 2 Q. B. Div. 588. Occupancy implies the exclusion of everyone else from enjoyment. Redfield. Utica etc. R. Co., 25 Barb. (N. Y.) 54. "Occupancy and Occupation" as Used in Statute.-Stocking a great pond with a new species of fish, and closing the outlet with a wire screen, constitute an |