states a failure or refusal to pay or account for money or property on demand is made prima facie evidence of guilt.99 State v. Barnes, 108 Minn. 227, 122 N. W. 4. Under a statute making a public officer who neglects or refuses to pay over public money intrusted to him in his official capacity, when lawfully required to do so, guilty of embezzle ment, such an officer may be guilty where his default is due to negligence and mismanagement, though no intent to defraud is shown. State v. Czizek, 38 Minn. 192, 36 N. W. 457. See generally § 94, supra. 99 See § 541, supra. CHAPTER 17 FALSE IMPRISONMENT § 552. Definition and nature. § 553. The detention. § 554. Unlawfulness of detention. § 555. Intent and malice. § 552. Definition and nature. False imprisonment is the illegal restraint of the person of any one against his will. Some of the statutes define it as the unlawful violation of the personal liberty of another, or as a wilful detention of another against his consent, and when it is not expressly authorized by law.3 It is a misdemeanor at common law, and in most states it is expressly punished by statute.5 Most of these statutes also make it a It is an unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority. Gordon v. Hogan, 114 Ga. 354, 40 S. E. 229; Brewster v. People, 183 Ill. 143, 55 N. E. 640; Slomer v. People, 25 Ill. 70, 76 Am. Dec. 786. 3 Redfield v. State, 24 Tex. 133; Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S. W. 463; Allen v. State, 8 Tex. App. 360; Herring v. State, 3 Tex. App. 108. 44 Bl. Com. 218; 3 Bl. Comm. 127; 1 East P. C. c. IX, pp. 428, 429; Campbell v. State, 48 Ga. 353; State v. Lunsford, 81 N. C. 528; State v. Hill, 2 Speers L. (29 S. C. L.) 150; Davies v. State, 72 Wis. 54, 38 N. W. 722; Smith v. State, 63 Wis. 453, 23 N. W. 879. 5 See the statutes of the various states and the following cases: California. People v. Wheeler, 73 Cal. 252, 14 Pac. 796. Florida, Ross v. State, 15 Fla. 55. Georgia. Gordon v. Hogan, 114 Ga. 354, 40 S. E. 229; Campbell v. State, 48 Ga. 353; Holliday v. Coleman, 12 Ga. App. 779, 78 S. E. 482. Kentucky. Carroll v. Com., 164 Ky. 599, 175 S. W. 1043. Massachusetts. Com. v. Blodgett, 12 Metc. (53 Mass.) 56. Montana. Kroeger v. Passmore, 36 Mont. 504, 93 Pac. 805, 14 L. R. A. (N. S.) 988. Texas. Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S. W. 463. misdemeanor, but under some of them it is a felony, especially when effected by violence or menace.8 § 553. The detention. Confinement or detention is an essential element of false imprisonment. The means of detention are not material. There need be no assault nor any actual force, but it is sufficient if there is a detention resulting from submission to a display of force or authority which can be avoided only by submission.10 So the detention may be committed by threats,11 or by threatening acts or gestures,12 but when there is no actual force, the party must reasonably apprehend force in case he does not submit.13 And if a way of escape is left open which is available without peril of life or limb, there is no imprisonment.14 It is also necessary that the officer or other person shall intend a detention or restraint, and that the other party shall so understand,15 and that he shall submit to such restraint.16 There can be no imprisonment unless it is against the will of the party imprisoned.17 The place of imprisonment is not material. It may be in a prison, or in a private house, or it may be by merely detaining a person 6 People v. Ebner, 23 Cal. 158; Ross v. State, 15 Fla. 55; Brewster v. People, 183 Ill. 143, 55 N. E. 640. 7 Begley v. Com. (Ky.), 60 S. W. 847. 8 Wiley v. State, 19 Ariz. 346, 170 Pac. 869, L. R. A. 1918 D 373. 189 S. W. 9 Furlong V. German-American Press Ass'n, Mo. 385; State v. Lunsford, 81 N. C. 528; Smith v. State, 7 Humph. (26 Tenn.) 43; McClure v. State, 26 Tex. App. 102, 9 S. W. 353; Allen v. State, 8 Tex. App. 360. 10 Furlong V. German-American Press Ass'n, Mo., 189 S. W. 385; Limbeck v. Gerry, 15 N. Y. Misc. 663, 39 N. Y. Supp. 95; State v. Lunsford, 81 N. C. 528; Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S. W. 463. 11 Gold v. Campbell, 54 Tex. Civ. App. 269, 117 S. W. 463; Meyer v. State (Tex. Cr.), 49 S. W. 600; McClure v. State, 26 Tex. App. 102, 9 S. W. 353; Allen v. State, 8 Tex. App. 15 Limbeck v. Gerry, 15 N. Y. Misc. 663, 39 N. Y. Supp. 95; McClure v. State, 26 Tex. App. 102, 9 S. W. 353. 16 Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089; Hill v. Taylor, 50 Mich. 549, 15 N. W. 899. Where the means used are threats, they must be sufficient to intimidate and prevent the person threatened from moving beyond the bounds in which he was detained. McClure v. State, 26 Tex. App. 102, 9 S. W. 353. 17 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; State v. Lunsford, 81 N. C. 528. against his will in the street, or in a field, or in any other place whatever. 18 § 554. Unlawfulness of detention. To constitute a false imprisonment, the detention must be unlawful. In other words, it must be without sufficient lawful authority.19 There is no false imprisonment where an officer or private citizen makes a lawful arrest.20 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.21 A writ or warrant, issued by a court having jurisdiction of the subject-matter, and valid on its face, protects an officer who executes it, if it is regularly returned. But a warrant or com mitment, 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, is no protection to the persons who procure it to be issued or to those who execute it.23 And criminal process procured for purposes of 18 2 Inst. 589; 3 Bl. Com. 127; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; People v. Wheeler, 73 Cal. 252, 14 Pac. 796; State v. Lunsford, 81 N. C. 528. 19 3 Bl. Com. 127. See also the following decisions: Arkansas. Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250. Florida. Barber v. State, 13 Fla. 675. Georgia. Sewell v. State, 61 Ga. 496. Kentucky. Carroll v. Com., 164 Ky. 599, 175 S. W. 1043. North Carolina. State v. Lunsford, 81 N. C. 528. Texas. Redfield v. State, 24 Tex. 133; Beville v. State, 16 Tex. App. 70; Cargill v. State, 8 Tex. App. 431; Allen v. State, 8 Tex. App. 360. Wisconsin. Smith v. State, 63 Wis. 453, 23 N. W. 879. Under the Texas statute the defendant must show express authority of law. Smyth v. State, 51 Tex. Cr. 408, 103 S. W. 899. 20 As where an officer arrests without a warrant a person who is drunk on the street, and is disturbing the peace. Mosley v. State, 23 Tex. App. 409, 4 S. W. 907. Oglesby v. State, 39 Tex. 53, holding that the sergeant of the guard at a fort who arrested a person outside of the fort for using abusive language was not guilty of false imprisonment. 21 Gordon v. Hogan, 114 Ga. 354, 40 S. E. 229; Lavina v. State, 63 Ga. 513; Com. v. White (Ky.), 101 S. W. 331; Begley v. Com. (Ky.), 60 S. W. 847; State v. Hunter, 106 N. C. 796, 11 S. E. 366; Gilbert v. State, 78 Tex. Cr. 441, 181 S. W. 200; Smyth v. State, 51 Tex. Cr. 408, 103 S. W. 899; Staples v. State, 14 Tex. App. 136. Persons called upon by an officer to assist him in making an arrest under a warrant are protected by the warrant. But a mere volunteer interferes at his peril. Kirbie v. State, 5 Tex. App. 60. 22 Slomer v. People, 25 Ill. 70, 76 Am. Dec. 786. 23 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Bath v. Metcalf, 145 oppression, fraud or private ends, and without probable cause to believe that a crime has been committed, affords no protection to the prosecutor or to an officer who is a party to the fraud.24 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.25 Nor is a warrant a defense to a municipal police officer for an arrest made outside of the muncipality, where he has no authority to serve warrants outside of its boundaries.26 Mere unavoidable delay on the part of an officer in taking bail of a person arrested for crime does not render him criminally responsible for false imprisonment.27 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,28 but it may be so clearly immoderate and cruel as to render him guilty.29 The imprisonment is presumed to be unlawful until the contrary is shown.80 § 555. Intent and malice. Some of the statutes in terms require the detention to be wilful,31 or wilful and felonious.32 Wilful as here used has been held to mean with evil intent or legal malice, or without reasonable ground for believing the act to be lawful. Under such a provision want of evil intent is a defense but ignorance of the law is not.33 A person who institutes a criminal prosecution is not guilty of false imprisonment where he acts in good faith, upon reasonable and probable cause to believe that the person prosecuted is guilty of the offense charged. But it is no defense to a prosecution based on an illegal Mass. 274, 14 N. E. 133, 1 Am. St. 24 Slomer v. People, 25 Ill. 70, 76 Am. Dec. 786. 25 3 Bl. Com. 127. 26 Coker v. State, 14 Ga. App. 606, 81 S. E. 818. 27 Cargill v. State, 8 Tex. App. 431. 28 Com. v. Randall, 4 Gray (Mass.) 36; Johnson V. State, 2 Humph. (Tenn.) 283. And see Boyd v. State, 11 Tex. App. 80. 29 Fletcher v. People, 52 Ill. 395; Com. v. Randall, 4 Gray (Mass.) 36. 30 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Slomer v. People, 25 31 Smyth v. State, 51 Tex. Cr. 408, 103 S. W. 899. 32 Carroll v. Com., 164 Ky. 599, 175 S. W. 1043. 33 Smyth v. State, 51 Tex. Cr. 408, 103 S. W. 899. As to the meaning of wilfulness generally, see § 97, supra. 34 Holliday v. Coleman, 12 Ga. App. 779, 78 S. E. 482; Slomer v. People, 25 Ill. 70, 76 Am. Dec. 786. |