dissenting.
The majority holds that the indictment for aggravated kidnapping is fundamentally defective because it does not allege that appellant intended to prevent the liberation of the complainant. The indictment alleges, in substance, all of the statutory elements of abduction and, thus, is sufficient.
The indictment alleges, in pertinent part, that on or about June 20, 1975, appellant “. . . did then and there intentionally and knowingly restrain Kimberly Jean Rogers by secreting and holding her in a place where she was not likely to be found without the consent of Kimberly Jean Rogers and with the intent to violate and abuse sexually the said Kimberly Jean Rogers.”
This alleges an offense under V.T.C.A., Penal Code, Section 20.04, which provides in part:
“(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
*727U* * *
“(4) inflict bodily injury on him or violate or abuse him sexually;
U* * *
“(b) An offense under this section is a felony of the first degree unless the actor voluntarily releases the victim alive and in a safe place, in which event it is a felony of the second degree.”
The indictment does not allege that appellant abducted the complainant. However, it does allege that he restrained her “by secreting and holding her in a place where she was not likely to be found without [her] consent.”
In Chapter 20 of the Penal Code there is a significant distinction between the terms restraint and abduction. These terms are defined in Section 20.01 which recites:
“In this chapter:
“(1) ‘Restrain’ means to restrict a person’s movements without consent, so as to interfere substantially with his liberty, by moving him from one place to another or by confining him. Restraint is ‘without consent’ if it is accomplished by:
“(A) force, intimidation, or deception; or
“(B) any means, including acquiescence of the victim, if he is a child less than 14 years of age or an incompetent person and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement.
“(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by:
“(A) secreting or holding him in a place where he is not likely to be found; or
“(B) using or threatening to use deadly force.”
Therefore, as the majority points out, abduction is an aggravated form of restraint. Under V.T.C.A., Penal Code, Sections 20.03 and 20.04, abduction constitutes felony conduct. But under V.T.C.A., Penal Code, Section 20.02, the false imprisonment provision, restraint constitutes misdemeanor conduct except where the actor recklessly exposes the victim to a substantial risk of serious bodily injury, in which event it is a third degree felony.
From the foregoing, it is clear that the indictment is sufficient if it alleges all of the statutory elements of abduction, even though it fails to allege the conclusory term “abduction” itself. See and compare, Ex Parte Cannon, 546 S.W.2d 266 (Tex.Cr.App. 1976) (opinion on motion for rehearing).
The indictment alleges that appellant restrained the complainant by secreting and holding her in a place where she was not likely to be found, an essential element of abduction. It further alleges that the restraint was without the complainant’s consent. This allegation is not mere surplus-age (as an element of restraint) because, in conjunction with the prior allegation, it connotes that appellant intended to prevent the liberation of the complainant.
Article 21.17, V.A.C.C.P., provides:
“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning or which include the sense of the statutory words.”
The indictment properly alleges all of the statutory elements of abduction. Moreover, it correctly alleges the necessary culpable mental states, see V.T.C.A., Penal Code, Sections 6.02, 6.03, and the required intent to violate and abuse sexually the complainant, see Article 21.04, V.A.C.C.P. The particular intent to violate and sexually abuse complainant is an element of aggravated kidnapping only. Section 20.04, supra. Thus, the indictment, taken as a whole, sufficiently charges the offense of aggravated kidnapping.
There was no exception or motion to quash the indictment. Appellant and his attorney knew he was charged with aggravated kidnapping and to this day neither has claimed they had no notice of what appellant had to defend against.
The judgment should be affirmed.