Gordon v. State, 3234

• Decision Date: 26 October 1962
• Docket Number: No. 3234,3234
• Citation: 145 So.2d 896
• Parties: Leroy GORDON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 896

145 So.2d 896

Leroy GORDON, Appellant, v. STATE of Florida, Appellee.

No. 3234.

District Court of Appeal of Florida, Second District.

Oct. 26, 1962.

Jack A. Nants, Orlando, for appellant.

Richard W. Ervin, Atty. Gen., Tallahassee, Robert R. Crittenden, Asst. Atty. Gen., Lakeland, for appellee.

ALLEN, Judge.

Leroy Gordon was convicted in the Criminal Court of Record of Orange County for the crime of kidnapping and was sentenced to a term of from six months to ten years in the state prison.

Gordon was charged and plead 'not guilty' to the following count:

'* * * that Leroy Larry Gordon and Arthur Jesse Hooks * * * on the 18th day of November [1961] * * * did then and there, without lawful authority, forcibly confine and imprison one Juanita Moore, in this State, with intent to cause the said Juanita Moore to be confined and imprisoned * * * against her will, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State of Florida.'

The appellant was convicted, the motion for new trial was denied and he appeals from the judgment of conviction below.

There is no need to detail the evidence adduced against the appellant in the court below as it is admitted by the State that there was no proof of an intent to secretly confine and imprison the prosecuting witness. The State contends that it was not necessary to prove an intent to cause the party to be secretly confined or imprisoned unless such fact was alleged in the information, which was not done in the instant case.

The brief of the State argues forcibly that F.S. § 805.01, F.S.A., set forth in part as follows:

'Whoever without lawful authority forcibly or secretly confines or imprisons another person * * * with intent either to cause him to be secretly confined or imprisoned in this state against his will * * *.' (Emphasis added)

having been written in the disjunctive, provides for two separate crimes. Ordinarily in the interpretation of a statute where the word 'or' is used or other disjunctive words, two crimes would be charged but this has not been the interpretation given this statute by the Supreme Court of our state, as shall be hereinafter set forth.

In one of the earliest cases interpreting this statute, that of Barber v. State of Florida, 13 Fla. 675, the Supreme Court, after citing the laws of 1868 (p. 68, $ 43), statutory predecessor to F.S. § 805.01, F.S.A.1961, in construing the indictment, said:

'This indictment fails to charge in the language or spirit of the statute that the act done was 'without lawful authority,' and therefore no offense is alleged under this statute. There are other defects alleged in the indictment, but it is unnecessary to notice them in disposing of this case. The fact charged comes short of being a misdemeanor at common law. The motion in arrest of judgment should have been granted.'

In Ross v. State of Florida, 1875, 15 Fla. 55, the Supreme Court held that an indictment charging one with having, without out lawful authority, forcibly imprisoned another against his will, did not state an offense under Section 43 of Chapter III of 'An Act to provide for the punishment of crime and proceedings in criminal cases,' approved August 6, 1868. Under that law the acts charged must have been committed 'with intent to cause him to be secretly confined or imprisoned in this State against his will, or to cause him to be sent out of this State.'

The Supreme Court, in its opinion in the Ross case, said:

'The statue of Massachusetts, (from which our law was copied,) has the disjunctive 'or' instead of 'and,' and yet the courts of that State understood the whole of the preceding words as referring to the intent to kidnap. (Com. v. Blodgett and another, 12 Metcalf, 56.) The Legislature of this State, by the use of the word 'and' instead of 'or,' has indicated beyond question that he same construction should be placed upon it; and by leaving the law of 1832 unrepealed, (which punishes the crime of false imprisonment as a misdemeanor only,) it is clear that it was not intended to punish every unlawful confinement or restraint of another as a felony.'

In the case of Holroyd v. State, 1937, 127 Fla. 152, 172 So. 700, the information charged that the defendant forcibly confined and imnprisoned one R. H. Brewton with the intent to cause the said R. H. Brewton to be secretly confined and imprisoned, etc. Therefore the intent to be secretly confined and imprisoned was a material allegation of the information which the State failed to prove. The Court, in its opinion, said:

'* * * The contention is well founded. This section was under consideration in the case of Ross v. State, 15 Fla. 55. In that case it was said:

"The plaintiff in error contends that under this act the unlawful imprisonment must be charged to have been committed with intent to cause the person imprisoned to be secretly confined or imprisoned in this State against his will, or to be sent out of the State against his will, and that an offense under this act is not well charged without alleging this intent. The counsel for the State insists that ...