Henry Click vs. The State of Texas, 3 Tex. 282

Mr. Justice Wheeleií, after stating the facts, delivered the opinion of the court, Justice Lipscomb not sitting. Lor the appellant, it is insisted that the court erred: 1st. In refusing to quash the indictment. 2d. In overruling the motion in arrest of judgment. 1. As the motion in arrest of judgment appears to embrace all the grounds which could be available to the defendant upon a revision of the motion to quash, it is unnecessary to consider the latter, except to observe that a motion to quash an indictment is always addressed to the discretion of the court. [1 Chit. Cr. L. 299, 301; Whart. Cr.

L. 131.] And the court will grant or refuse the-motion, ás in its discretion it may deem proper; being guided in the exercise of that discretion by certain rules. [1 Chit. Cr. L. 299.] Where the application is made on the part of the defendant, the English courts, it is said, have almost uniformly refused to-quash an indictment when it appeared to be for some enormous crime; and they have also, in a great many instances, refused to quash indictments for minor offenses. [Whart. Am. Cr.

L. 131.] It is in the discretion of the court to q uash an indictment for insufficiency, or put the party to a motion in arrest of judgment.

But when the question is doubtful the court will refuse-to quash the indictment. [Id.] The court will not quash an indictment except in a very clear case [Id.; 4 Yeates, 69; 1 Murph. 213], but will put the party to a demurrer, or motion in arrest of judgment. “ The court is under no legal obligation to qnasli a defective indictment on motion before the trial is concluded, as the party indicted has his remedy by a demurrer, or by a motion in arrest of judgment.” [10 Shep. 191.] “ When the motion is made on the part of the defendant,” says Mr.

Chitty, “ the rules by which the court is guided are more strict, and their objections are more numerous; because, if the indictment be quashed, the recognizances will become ineffectual; and the courts usually ref use to quash on the application of the defendant when the indictment is for a serious offense, unless upon the clearest and plainest ground, but will drive the party to a demurrer, or motion in arrest of judgment, or writ of error.” [1 Chit. Cr. L. 300.] The application, it is said, if made on the part of the defendant, must be made before plea. [Whart. Or.

L. 132.] But in some of the American courts, the practice is always to permit the plea of not guilty to be withdrawn, in order to hear a motion to quash. [2 South. 539.] This, however, is a matter entirely within the discretion of the court, it being a rule which the discretion of the courts have adopted for their guidance, and from which, of course, they may vary.” [1 Chit. Cr. L. 303.] 2d. In order to determine the sufficiency of the indictment, to which aloné the motion in arrest of judgment is directed, it becomes necessary to recur to the definition and description of the offense charged.

At the time of the alleged commission of the offense, and of the finding of this indictment, there was no statutory definition, or express recognition of the crime of kidnapping. It is to the common law alone, therefore, that we must look to test the sufficiency of the definition and description of the offense contained in this indictment. Kidnapping is defined to be “ the forcible abduction and conveying away of a man, woman or child, from their own country, and sending them to another.” [2 Tom. L. Die. 335; 4 JB1. Com. 219; 1 East. P.

C. 430, sec. 4.] This offense is treated as an aggravated species of false imprisonment. [Koscoe on Ev. 465; 1 East. P. O. 430.] And all the ingredients in the definition of the latter offense ar© necessarily comprehended in the former. These are: “1. The detention of the person. 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment.” “Unlawful, or false imprisonment consists in such confinement or detention without sufficient authority.” [3 Bl. Com. 127; 1 Tom. L.

Dic. 755.] These essential elements in the definition of the offense must enter into the description of it in the indictment. And to constitute it the offense of kidnapping, proper at common law, another circumstance would seem tobe necessary, viz.: that of sending away the person, upon whom the óffense is committed, from his own country into another.

In East’s Pleas of the Crown, p. 430, it is said “the forcible abduction, or stealing and carrying away of any person, is greatly aggravated l)y sending them, away from their own country into another, 'properly called MdnappingP If this latter be an essential ingredient in the offense of kidnapping, the present indictment must be defective in not containing this averment. The only precedents of indictments for kidnapping at common law, to which we have had reference, contain this averment.

And so far as the precedents may be regarded as furnishing evidence of what was deemed necessary, or at least proper, in an indictment for this offense at the common law, the requisites as deducible from them would seem to be: 1st. An averment of an assault. 2d.

The carrying away or transporting of the party injured from his own country into another, unlawfully, and against his will. [1 Tremaine’s Pleas of the Crown, 216.] But if. this transportation, or carrying away from his own country into another, be not necessary to constitute the offense, or if the offense intended to be charged in the present indictment be not properly kidnapping, but that of the abduction or “ stealing and carrying away, or secreting of the person upon whom it is alleged to have been committed, sometimes called kidnapping,” still it amounts to, at least, an aggravated species of false imprisonment [id.], and the indictment must contain every averment necessary to the description of that offense.

The unlawfulness, or the want of lawful authority, we have seen is one of the circumstances necessary to constitute the offense, and it is nowhere averred in the present indictment. The omission cannot be supplied by the conclusion of the indictment “contrary to the form of the statutes,” for it is founded on no statute, and can only be sustained as a good indictment at common law by rejecting the conclusion as sur-plusage. [Whart. Am. Cr. L. 105, 6, No. 3; 1 Chit. Cr.

L. 290.] To constitute the crime of kidnapping, the asportation or conveying away must-have been .against the will and without the consent of the party injured, and without any lawful warrant or authority therefor, and these essential circumstances descriptive of the offense charged should appear by averment in the indictment. [3 Chit. Cr.

L. 835 to 841.] Under the present indictment, the defendant could not have been convicted of the less offense of an assault, for the reason that no assault is charged to have been committed by him. “ The rule, it has been said, that a man shall not be charged with one crime and convicted of another, may sometimes cover real guilt, but its observance is essential to the preservation of innocence.” [7 Cranch, 389.] The words employed in this indictment are not descriptive of the offense of kidnapping at common law, however they might be of the offense inhibited by some of the numerous statutes in England enacted for the punishment of the abduction, stealing or secreting of men, women and children.

It is not sufficient to charge the defendant in this case with 7cid-napping generally, for he cannot be thereby apprised of the facts he will be required to answer. But the indictment should state specifically the facts and circumstances which constitute that offense. This not having been done in the case before us, we are of opinion that the indictment is defective and insufficient, and does not support the conviction had, or authorize a judgment of condemnation upon it; and that the motion in arrest of judgment for this cause ought to have been sustained.

The judgment must therefore be reversed, and the’ cause remanded for further proceedings.