William A. Ross, Appellant, vs. The State of Florida, Appellee, 15 Fla. 55

RANDALL, C. J., delivered the opinion of the court. Plaintiff in error was indicted for having, “ without lawful authority, forcibly imprisoned one' Thomas P. Gary against his will, and without any legal warrant, authority or reasonable or justifiable cause whatever, imprisoned and detained him so imprisoned for the space of five minutes.” Upon the trial the jury rendered a verdict of guilty, and the said William A. Ross was sentenced to imprisonment in the State prison for one year.

Before trial the prisoner’s counsel moved to gnash the indictment on the ground that the offence stated in the indictment was a misdemeanor only under the act of Feb’y 10,1832, (Th. Dig., 490,) of which offence the Circuit Court had no jurisdiction, and that by law (act of Feb’y 19, 1874,) an indictment for a misdemeanor was a nullity, and that the indictment did not state an offence under the criminal law of 1868, (act of Aug. 6, 1868, p. 68.) After verdict, prisoner’s counsel moved in arrest of judgment upon' the same grounds: The court refused to grant either motion, and this is assigned as error.

The act of August 6, 1868, provides that “ whoever, without lawful authority, forcibly or secretly confines or imprisons another person, within this State, against his will, and confines, or inveigles, or kidnaps another person, with intent either 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 against his will, * * * shall be punished by imprisonment in the State Penitentiary not exceeding two years.” 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 offence under this act is not well charged without alleging this intent.

The counsel for the State insists' that the statute of 1868 provides for punishing the offence of an unlawful imprisonment as a distinct offence ; and that an imprisonment or confinement with intent, &c., is another distinct offence, and that the copulative word “ and,” after the words “ against hi. will,” where it first occurs, may be construed as referring to another offence defined in the words which follow it.

The statute 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. vs.

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 the 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. The judgment of the Circuit Court must therefore be reversed and the indictment quashed.