PRISONER. One held in confinement against his will.
Lawful prisoners are either prisoners charged with crimes or for a civil liability. Those charged with crimes are either per sons accused and not tried; and these are considered innocent, and are therefore en titled to be treated with as little severity as possible, consistently with the certain de tention of their persons ; they are entitled to their discharge on bail, except in capital cases ; or those who have been convicted of crime, whose imprisonment, and the mode of treatment they experience, is intended as a punishment : these are to be treated agree able to the requisitions of the law, and, in the United States, always, with humanity. Prisoners in civil cases are persons arrested on original or mesne process, and these may generally be discharged on bail; and prison ers in execution, who cannot be discharged except under the insolvent laws.
Persons unlawfully confined are those who are not detained by virtue of some lawful, judicial, legislative, or other proceeding. They are entitled to their immediate dis charge on habeas corpus. For the effect of a contract entered into by a prisoner, see 1 Salk. 402, n.; 6 Toullier 82.
"An officer may take from a prisoner any articles of property which it is presumable may furnish evidence against him, but mon ey should not be taken unless it is in some way connected with the charge or proof against him, as he is thereby deprived of the means of making his defence. The arresting officer if he finds on the prisoner's body, or otherwise in his possession, either goods or money which he reasonably believes to be connected with the supposed crime as its fruits, or as supplying proofs relating to the transaction, may take and hold them to be disposed of as the court directs;" Stuart v. Harris, 69 Ill. App. 668. By statute in Iowa an officer making an arrest, or a jailer upon committing a person to jail, may search him and take from him all offensive weapons and property which might be used in effecting an escape, but he has no right to take from him watches and money in no way connected with crime; Commercial Exch. Bk. v. Mc
Leod, 65 Ia. 666, 19 N. W. 329, 22 N. W. 919, 54 Am. Rep. 36, where it was said: "Where a party submits to a search of his person by an officer, it cannot be said that the search was with his consent, because he makes no physical resistance ; when the search is com pleted and the fruits thereof are retained by the officer, it would require a strong show ing to hold that this was with the consent of the prisoner." Where money had been taken from a pris oner and an effort was made to reach it by garnishment against the officer, it was held that it was illegally taken, not being connect ed with the offence charged or necessary as evidence of the crime ; but an application for a mandamus to compel the restoration of the money by the officer was denied be cause the propriety of its restoration was the subject of litigation under the attach ment ; Ex parte Hum, 92 Ala. 102, 9 South. 515, 13 L. R. A. 120, 25 Am. St. Rep. 23.
Pieces of silver intended for the manu facture of counterfeit coin were held to have been properly taken by the sheriff from the person who was carrying them to the place of manufacture, and it was held that the owner could not sustain trover therefor against the sheriff; Spalding v. Preston, 21 Vt. 9, 50 Am. Dec. 68, where it was held by Redfield, J., that the base metal was proper ly detained both as evidence and because from its character it was, "so to speak, out lawed, and common plunder." In New Hampshire it was held that "if a prisoner has about his person money, or other arti cles of value, by means of which, if left in his possession, he might obtain tools or im plements, or assistance, or weapons, with which to' effect his escape, the officer arrest ing him may seize and hold such property for a time, without being liable for a con version of the property, if he acts in good faith and for the purposes aforesaid ;" Clos son v. Morrison, 47 N. H. 482, 93 Am. Dec. 459.