Usually a false imprisonment includes an assault or assault and battery, but this is not necessarily the case. There may be an imprisonment by words alone, as where an officer tells a person that he is under arrest, and the person submits;147 but words alone are not sufficient to constitute an assault and battery, or even an assault.148

To constitute a false imprisonment, the means of detention are not material. There need be no actual force, nor even a touching of the person. As stated above, if an officer tells a person that he arrests him, and the person submits, there is a detention, and, if the arrest is unlawful, a false imprisonment.149 When there is no actual force, the party must reasonably apprehend force in case he does not submit.150 And he must submit.151 It is also necessary that the officer or other person shall intend a detention or restraint, and that the other party shall so understand.152 There can be no imprisonment unless it is against the will of the party imprisoned.153

The place of imprisonment is not material. As was stated above, it may be in a prison, or in a private house. Or it may be by merely detaining a person against his will in the street, or in a field, or in any other place whatever.154

147 Pike v. Hanson, 9 N. H. 493; Grainger v. Hill, 4 Bing. N. C. 212; note 149, infra.

148 Ante, § 198.

149 Pike v. Hanson, 9 N. H. 493; Grainger v. Hill, 4 Bing. N. C. 212; Smith v. State, 7 Humph. (Tenn.) 43, Mikell's Cas. 534. And see State v. Lunsford, 81 N. C. 528; Jones v. State, 8 Tex. App. 365.

150 Smith v. State, 7 Humph. (Tenn.) 43, Mikell's Cas. 534; McClure v. State, 26 Tex. App. 102, 9 S. W. 353.

151 Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089; Hill v. Taylor, 50 Mich. 549, 15 N. W. 899.

152 Limbeck v. Gerry, 15 Misc. (N. Y.) 663, 39 N. Y. Supp. 95.

153 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; State v. Lunsford, 81 N. C. 528.

154 3 Bl. Comm. 127; People v. Wheeler, 73 Cal. 252, 14 Pac. 796; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250.

226. Unlawfulness of Detention.

To constitute a false imprisonment, the detention must he unlawful. In other words, it must be without sufficient lawful authority.1

155

There is no false imprisonment where an officer or private individual makes a lawful arrest, or where a jailer detains a prisoner lawfully committed to his custody. If, however, an arrest is made without a warrant when a warrant is necessary, the arrest and detention are unlawful, and constitute a false imprisonment.156

The same is true if a warrant or commitment is void on its face, either because it was issued by a person having no authority, or because it is not in the form required by law, for a warrant or commitment that is void on its face is no protection.157

False imprisonment may also arise by executing a lawful warrant or process at an unlawful time, as on Sunday, when a statute prohibits its execution on that day.158

A parent or teacher, or one in loco parentis, is not guilty of false imprisonment in restraining his child or pupil, if the restraint is not clearly unreasonable and immoderate,159 but it may be so clearly immoderate and cruel as to render him guil

ty 160

Abuse of authority, or of process that is valid, may render an officer guilty of a false imprisonment, as where he detains the person arrested for an unreasonable time before presenting him for examination or trial as required by law,161 or wrong

155 3 Bl. Comm. 127; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Sewell v. State, 61 Ga. 496; Barber v. State, 13 Fla. 675; Cargill v. State, 8 Tex. App. 431; Beville v. State, 16 Tex. App. 70.

156 State v. Hunter, 106 N. C. 796, 11 S. E. 366.

157 Winchester v. Everett, 80 Me. 535, 15 Atl. 596, 6 Am. St. Rep. 228. 158 3 Bl. Comm. 127.

159 Johnson v. State, 2 Humph. (Tenn.) 283; Com. v. Randall, 4 Gray (Mass.) 36.

160 Fletcher v. People, 52 Ill. 395; Com. v. Randall, 4 Gray (Mass.) 36. 161 Anderson v. Beck, 64 Miss. 113, 8 So. 167; Twilley v. Perkins, 77 Md. 252, 26 Atl. 286, 39 Am. St. Rep. 408.

fully refuses to take bail, or to allow the prisoner to obtain his release on bail,162 or unlawfully detains a prisoner after he has become entitled to be discharged.1 163

227. Intent-Malice.

All persons are chargeable with a knowledge of the law, and, if a person unlawfully arrests or detains another with full knowledge of the facts, he is guilty of a false imprisonment, without regard to his motive. He must, of course, intend a detention, but his motive is entirely immaterial. Malice is not at all essential. Thus, a police officer or jailer is indictable for false imprisonment if he arrests or detains another under a warrant or commitment that is void on its face, though he may act in good faith, and in the belief that it is valid.164

IV. KIDNAPPING.

228. Definition.-Kidnapping, at common law, is the forcible abduction or stealing away of a man, woman, or child from their own country, and sending them into another.165 Statutory definitions are somewhat different.

229. Nature of the Offense.

Both by the Jewish law and by the civil law, kidnapping was punished by death, but by the English common law it was merely a misdemeanor punishable by fine, imprisonment, and pillory,166

The offense is very generally punished by statute in this country, but it is not necessary under the statutes that the per

162 Manning v. Mitchell, 73 Ga. 660. Compare Cargill v. State, 8 Tex. App. 431.

163 Bath v. Metcalf, 145 Mass. 274, 14 N. E. 133, 1 Am. St. Rep. 455. 164 See 12 Am. & Eng. Enc. Law (2d Ed.) 726.

165 4 Bl. Comm. 219; 1 East, P. C., c. IX, § 3, Mikell's Cas. 534.

166 4 Bl. Comm. 219; Designy's Case, T. Raym. 474, Mikell's Cas. 535.

son kidnapped shall be taken into another country,167 nor is it necessary that the person kidnapped be a resident, for all purposes, of the place from which he is taken.167a While the element of force is required by the definition, actual force is not always necessary. Fraud or intimidation may suffice.168 There is no kidnapping if the person taken freely consents to the taking, provided he or she is capable of consenting, and there is no fraud.169 But a child of very tender years is not competent to give a valid consent.170 The same is true of a person who is too drunk to consent.171 Consent induced by fraud, or by intimidation and duress, is not a valid consent, and is therefore no defense.172 A parent may be guilty if he have no right to the child's custody,172a but a parent having lawful custody of his minor child cannot be guilty of kidnapping her.172b

167 See State v. Rollins, 8 N. H. 550.

167a A person may be kidnapped from any place where he has a right to be. Wallace v. State, 147 Ind. 621, 47 N. E. 13.

168 See Moody v. People, 20 Ill. 315; Payson v. Macomber, 3 Allen (Mass.) 69; People v. De Leon, 109 N. Y. 226, 16 N. E. 46; Hadden v. People, 25 N. Y. 372; Schnicker v. People, 88 N. Y. 192.

To get a sailor intoxicated for the purpose of getting him on board a vessel without his consent, and taking him on board while in that condition, is kidnapping, under the New York statute. Hadden v. People, supra.

169 1 Whart. Crim. Law, § 590; Eberling v. State, 136 Ind. 117, 35 N. E. 1023.

So where the parent entitled to the custody of a child of tender years consents. John v. State, 6 Wyo. 203, 44 Pac. 51.

170 State v. Rollins, 8 N. H. 550; State v. Farrar, 41 N. H. 53.

171 Hadden v. People, 25 N. Y. 372.

172 Moody v. People, 20 Ill. 315; People v. De Leon, 109 N. Y. 226, 16 N. E. 46; note 168, supra.

172a State v. Farrar, 41 N. H. 53; Com. v. Nickerson, 5 Allen (87 Mass.) 518; In re Peck, 66 Kan. 693, 72 Pac. 265. Contra, Burns v. Com., 129 Pa. 138, 18 Atl. 756.

172b In re Marceau, 32 Misc. 217, 65 N. Y. Supp. 717; John v. State, 6 Wyo. 203, 44 Pac. 51.

V. ABDUCTION.

230. Definition.-In England and in this country, statutes have been enacted punishing as abduction the taking or detaining of women against their will, with intent to marry or defile them, or to cause them to be married or defiled, or the alluring, taking away, or detaining of girls under a certain age without the consent of their parent or other person having lawful care or charge of them, or the taking or enticing of girls for the purpose of prostitution. The statutes vary in the different jurisdictions.

231. Particular Statutes-English Statutes.

By the statute of 3 Hen. VII. c. 2, it was enacted that if any person should, for lucre, take any woman, being maid, widow, or wife, and having substance either in goods or lands, being heir apparent to her ancestors, contrary to her will, and afterwards she should be married to such a wrongdoer, or by his consent to another, or defiled, such person, his procurers and abettors, and such as should knowingly receive such woman, should be deemed guilty of felony. This statute was afterwards repealed, and new statutes enacted. The present statute punishes (1) any person who, from motives of lucre, shall take away or detain, against her will, any woman of any age, having certain property or expectancies, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person; (2) or who, with such intent, shall fraudulently allure, take away, or detain such woman, being under the age of twenty-one years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her; (3) or who shall by force take away or detain against her will any woman of any age, with such intent; (4) or who shall unlawfully take or cause to be taken any unmarried girl under the age of sixteen years, out of the possession and against the will of her father or mother, or of any person having the lawful care or charge of