Smith v. State

• Decision Date: 01 June 1885
• Citation: 23 N.W. 879,63 Wis. 453
• Parties: SMITH v. STATE.
• Court: Wisconsin Supreme Court

63 Wis. 453

23 N.W. 879

SMITH

v.STATE.

Supreme Court of Wisconsin.

Filed June 1, 1885.

Error to circuit court, Sauk county.

Brooks & Dutcher, for plaintiff in error.

Asst. Atty. Gen. H. W. Chynoweth, for defendant in error.

ORTON, J.

The plaintiff in error was tried and found guilty upon the following information: “That on the twenty-fifth day of July, in the year 1883, at said county, said William Smith did feloniously, unlawfully, maliciously, and willfully assault one A. B. Ewers, and then and there feloniously, unlawfully, injuriously, willfully, and without lawful authority, forcibly confine and imprison, against his, the said A. B. Ewers', will, and him, the said A. B. Ewers, then and there feloniously, and without any lawful authority, and against his will, forcibly did convey from Mill Creek, in said county, to Hawthorne's store, in said county, against the peace and dignity of the state of Wisconsin.” There was a motion in arrest, and for a new trial, which was overruled, and thereupon the defendant, the plaintiff in error, was sentenced by the court to imprisonment in the state prison, for a term within the limits prescribed by section 4387, Rev. St. 1878, on which the information was claimed to have been predicated. That section is as follows: “Any person who shall, without lawful authority, forcibly or secretly confine or imprison another within this state, against his will, or who shall forcibly carry or send another out of this state, or from place to place within this state, against his will, and without lawful authority, or who shall, without such authority, forcibly seize, confine, inveigle, or kidnap another, with intent to cause such person to be secretly confined or imprisoned in this state against his will, or to be sent or carried out of this state against his will, or to be sold as a slave, etc., shall be punished by imprisonment in the state prison not more than two years nor less than one year.”

On the motion in arrest, and on the instructions given by the court to the jury, and certain instructions asked and refused, the question was raised whether the information charged the offense defined in the above section, and this is the only important question presented to this court on the writ of error. It was and is contended by the learned counsel of the plaintiff in error that the information should have charged that the confinement and imprisonment, and the conveying of Ewers from place to place within this state, was “with intent to cause him to be secretly confined or imprisoned in this state against his will, or to be sent or carried out of the state against his will, or to be sold as a slave,” etc.; and that such intent qualifies all of the previous clauses of the sections, and should be averred in connection therewith. The learned judge of the circuit court, before whom the cause was tried, held that the first two clauses defined complete and distinct offenses in themselves, and that it was not necessary to aver or prove such intent.

The information, after alleging the assault, undertakes to charge the forcible confinement and imprisonment of some one “against his, the said A. B. Ewers', will,” but does not state who such person was; but this allegation was treated as having charged the forcible confinement and imprisonment of him, the said A. B. Ewers, and the learned judge said in his charge: “In this case the act is charged as complete, and it is the forcible confinement and imprisonment. It is not doing a thing with intent to accomplish some other thing.” The conveyance of the prisoner from place to place within this state, as charged in the information, is ignored in the charge. We shall therefore treat the information as sufficiently alleging the forcible confinement and imprisonment of A. B. Ewers within this state against his will, and without lawful authority. This clause of the section alone states nothing more than a mere unlawfulor false imprisonment. The qualifying words in this information, such as “unlawfully, feloniously, injuriously, or willfully,” are not in the section, and do not qualify the confinement or imprisonment, which has to be only forcible, without lawful authority, and against the will of the prisoner, to constitute the offense, if this clause alone is intended to define an offense. False imprisonment was indictable at common law, and the indictment charged the accused with having assaulted another, and him then and there unlawfully, injuriously, against his will, and without his consent, and without any legal warrant, authority, or justifiable cause, imprisoned and detained for a long time, (to-wit,) etc. 1 Chit. Crim. Law, 834. It is an unlawful restraint of one's liberty for which an action could be brought for private damages; and to punish the wrong done to the public, it was also indictable at common law. 4 Bl. Comm. 218. “There must be an unlawful detention, and such detention will be unlawful unless there be some sufficient authority for it, arising either from some process from the courts of justice, or from some legal warrant of a legal officer having power to commit, or arising from other special cause sanctioned for the necessity of the thing, either by common law or by act of parliament.” 1 Russ. Cr. 1028; 3 Bl. Comm. 127.

If the first clause of the section was intended only to define and constitute the crime of false imprisonment, it certainly has no ingredients which were not always present in false imprisonment at common law, which was not both the subject of a civil action and of indictment. Whether false imprisonment is not now indictable as a misdemeanor at common law in this state and other states depends upon the statutes prescribing or not prescribing the penalty thereof.

The next clause of the section is, “or who shall forcibly carry or send another out of this state against his will and without lawful authority.” Here is something more than mere false imprisonment, and is kidnaping fully consummated; and the other clauses following, which imply a false imprisonment with “intent to cause the prisoner to be secretly confined or imprisoned in this state against his will, or to be sent or carried out of this state against his will, have all the elements of kidnaping at common law, and perhaps something more. Kidnaping at common law is defined to be “the forcible abduction and conveying away a man, woman, or child from their own country and sending them to another.” 2 Toml. Law Dict. 335; 4 Bl. Comm. 219; 1 East, P. C. 430. “It is an aggregated species of false imprisonment.” Roscoe, Ev. 465. “The forcible abduction and carrying away of any person by sending him from his own country into some other * * * is properly called kidnaping, and is an offense of an aggravated description.” 1 Russ. Cr. 961. “It might well have been substituted upon the roll of capital crimes.” 1 East, P. C. 430.

This crime, at common law, was punished with vigorous severity, as being of the most atrocious character. Its punishment, under our statute and the statute of other states, indicates the high grade of the offense. Here it is imprisonment in the state prison for a term of not less than one year. In Vermont the punishment is three years in state prison. In Illinois, from one to seven years, under a statute substantially like ours, for kidnaping; and for the misdemeanor of false imprisonment, not to exceed $500 fine, and imprisonment in county jail not to exceed one year. In Maryland, in state prison from two to ten years. In Iowa, in state prison five years. In Ohio, in state prison from one to seven years. In New Jersey, not to exceed 20 years. In Texas, not to exceed 10 years. There is a corresponding punishment for this crime in all the states. Can it be possible that the legislature of this state intended to punish simple false imprisonment the same as this high crime of kidnaping? And yet it must be so, if the first clause of the section defines a distinct...