There was error in the charge of the court, in requiring the jury, if they found the defendant guilty of false imprisonment, to inflict the punishment of both fine and imprisonment. The code leaves it discretionary with the jury, whether they will impose the imprisonment or not. (O. & W., Penal Code, Art. 513.) The small amount of the fine imposed, may suggest the inference that the jury would have inflicted the same punishment under a correct charge. Such an inference, however, is not a proper basis for the action of this court in such a case.
The court erred in refusing to arrest the judgment. The indictment was defective in not alleging the detention to have been without lawful authority. By the Code, “false imprisonment is the wilful detention of another against his consent, and when it is not expressly authorized by law.” (O. & W., Art. 508.) The legality of the detention must be negatived. It was so at common law. (Whart. Prec. 124.) The words used in the indictment, “ contrary to the form of the statute in such case made and provided,” are merely formal, and were originally intended to indicate that the offence described, is statutory, and does not constitute a part of the description of the offence. Nor is it believed to be an appropriate expression, to negative the legal authority of the detention.
Reversed and dismissed.