I concur in the opinion that the phrase "without authority of law," in Act No. 221 of 1932, is a part of the definition of the crime of kidnapping only when the crime is committed by imprisoning or secreting a person, but not when it is done by forcibly seizing a person and carrying him out of the state or from one part of the state to another part of the state. The grammatical *Page 666 construction of the statute leaves no doubt about that in my mind. The repetition of the words "whoever shall" separates the definition of the crime of kidnapping by forcibly seizing and carrying away, from the definition of the crime of kidnapping by imprisoning or secreting, so that the first definition is completed and ended before the other is begun. The distinction between the two ways of committing the crime of kidnapping was not so clearly drawn in Act No. 86 of 1908, because the words "whoever shall" were not repeated at the end of the definition of the first way in which the crime might be committed. And, even before the statute was reconstructed, in the act of 1932, by the repetition of the pronoun "whoever," it was held, in State v. Holland, 120 La. 429, 45 So. 380, 381, under Rev.Stat. § 805, that, in an indictment charging that the defendant did forcibly seize and carry a person from one part of the state to another part, it was not necessary to charge that the forcible seizing and carrying away was done "without authority of law," but was sufficient to charge that it was done willfully, forcibly and unlawfully. The opinion of the court on this subject was expressed thus:
"Counsel for the accused has assigned as error that the indictment is fatally defective, because it omits the words `without authority of law,' and does not use the qualifying word `feloniously.' The indictment charges that the accused `with force and arms, willfully, forcibly, and unlawfully, and against her will, did seize and convey,' etc. We consider that the word `unlawfully' *Page 667 necessarily implies `without authority of law.' An unlawful act is one contrary to law, and hence without authority of law."
It is argued for the appellants that the interpretation that was given to the statute in State v. Holland is not now controlling because, in the act of 1932, a comma (,) was added, after the phrase "or whoever shall imprison or secrete," so as to set off parenthetically the phrase "without authority of law." But I do not believe that this change in the punctuation was intended to change the meaning of the law. There are not many writers who follow an orthodox rule of punctuation — especially in their use of commas — the modern idea being to omit the comma wherever the sentence in which it might be appropriate is plain enough without it. It is not at all likely that the writer of the act of 1932 believed that the placing of a comma between the phrase, "or whoever shall imprison or secrete," and the phrase, "without authority of law," would make such a material change in the meaning of the law as the appellants contend for in this case.
The only difference between the wording of the indictment in this case and the wording of the indictment in State v. Holland is that, in this case the indictment charges that the seizing and carrying away of the victim was done willfully, feloniously and forcibly, and in Holland's Case the indictment charged that the seizing and carrying away of his victim was done willfully, forcibly and unlawfully. The difference, therefore, is in the using of the word "unlawfully" in Holland's Case and the using of the word "feloniously" in this case. The word *Page 668 "feloniously" is more comprehensive than "unlawfully" and includes, essentially, "unlawfully." Hence, according to the ruling in State v. Holland, to say that a person willfully, feloniously and forcibly seized and carried away another person is at least the equivalent of saying that the seizing and carrying away was done without authority of law.
Even if the indictment in this case should be deemed defective, for want of the phrase "without authority of law," this court would be forbidden by article 253 of the Code of Criminal Procedure to set aside the conviction on account of the defect, because the defendants did not make their objection to the indictment before or during the trial of the case. The article of the Code of Criminal Procedure declares:
"No indictment shall be quashed, * * nor shall any conviction be set aside or reversed on account of any defect in form or substance of the indictment, unless the objection to such indictment, specifically stating the defect claimed, be made prior to the commencement of the trial or at such time thereafter [after the commencement of the trial] as the court in its discretion [may] permit."
The defect which the defendants now claim to have found in the indictment was not suggested either by way of a motion to quash, before the commencement of the trial, or by way of an objection to the testimony, during the trial. If such an objection to the wording of the indictment had been made before or during the trial, the district attorney would have had the right *Page 669 to amend the indictment, and, if the amendment should have been deemed a matter of substance, the defendants would have been entitled to a postponement of the trial, and, if necessary, a discharge of the jury. Code Cr.Proc. arts. 253 and 364. A failure of a defendant to ask for a postponement of the trial in such a case is a waiver of any and all objection to the amendment of the indictment. State v. Johnson, 181 La. 1, 158 So. 570; State v. Walker, 189 La. 241, 179 So. 302, decided today.
The state proved, without any objection as to the sufficiency of the averments in the indictment, that the forcible seizing and carrying away of the victim of this crime was done without authority of law. It is so said in the statement per curiam on bill of exception No. 1; and it is admitted in the defendant's brief (second page) that the facts of the case are as stated in their supplemental motion for a new trial, "and in the trial judge's per curiam to Bill No. 1." Hence, even though it was not alleged in the exact words of the indictment, nevertheless it was proved on the trial of the case, without objection on that score, that the forcible seizing and carrying away of the victim in this case was done without authority of law. In such a case it would be a failure in the administering of justice to set free a defendant whose guilt has been proved in every essential element of the crime charged, after he has silently taken his chance of being forever acquitted of the crime charged. It was to prevent such a failure in the administering of justice that the provisions of article 253 of the Code of Criminal Procedure were adopted. *Page 670