l. ^prisoner tó escape' I. William Bates was charged before a justice, with having threatened to commit a public offense against the person of one Stratton, and the .magistrate issued his warrant as contemplated by chapter 184 of ¿he Revision. The constable, Elliott, had this warrant, and the defendant, Oliver Bates, it is claimed, assisted the said William in escaping from the custody of said officer after arrest under said warrant. And the first point made on this *98appeal is, that said William was not held upon “ any criminal charge” within the meaning of the statute. The offense is, to aid or assist any prisoner in escaping from the custody of any sheriff, constable, etc., “who has the lawful charge of such person upon any criminal charge.” And, in our opinion, to assist one in escaping when held for having threatened to commit a public offense, is as much a violation of the statute, as though he stood charged with its actual commission. He is held upon a “ criminal charge ” within the meaning of the law.
II. Whether the testimony warrantéd the finding, was fairly submitted to the jury under the instructions; and with the result we are not inclined tp interfere, and especially so after the court below has held the veVdict warranted by tlie testimony.
a_guilt or pr?“o°ne“immatenai. III. Whether William Bates had or had not threatened to commit an offense, as charged in the warrant, and whether the justice had sufficient testimony to justify the order for arrest, was immaterigj. and irrelevant in this case: The officer had the warrant, and the defendant, in the present proceeding, could not escape liability by proving, that the party charged and' arrested by the officers was not, in fact, guilty. Iiis simple duty was, to'let the law take its course, and the guilt or innocence of the party escaping by his aid or assistance had nothing to do with his responsibilities as a citizen nor with his liability-under-this indictment. All testimony, therefore, offered by. him to show that the prosecution against William was unfounded, or that he was innocent, was properly rejected.
3. ofmoeb: de facto. IY. Elliott, who had the warrant, in May, 1866, had been constable of the township for several years, and was re-elected in 1865 ; but it seems that, though contintted to act as before, he did not file *99a new bond nor take a new oath. It is now ^claimed that as he was not a constable de jure, that the prisoner, William, was not in lawful custody; that the act of the constable was illegal, and therefore defendant cannot be liable for aiding, etc.
The answer, briefly,-is that the constable was not falsely assuming to act as such officer within section 4298 of the Revision, as claimed by appellant. He was an officer defacto. He was discharging all the duties of the office, as formerly, the justice handing to him notices, executions and all papers, as had been his habit for years. By the law, he held for the year 1865, and “ until his successor was elected and qualified.” Rev. § 475. If, as his own successor, he had failed to qualify by the time fixed by the proper officer as provided by section 568, the office might have been declared vacant, but in the absence of all proof that the proper officer had made such an order, or of any failure to comply therewith, or proceedings declaring a vacancy, it is clear that he could legally make the arrest, that the prisoner, William, was 'in lawful custody, and the defendant cannot protect himself on the ground that he had not qualified anew. Hpon this subject, see Ex parte Struble, 16 Iowa, 369; Keeny v. Leas, 14 Id. 464, and the numerous cases there cited.
Affirmed.