Slaughter v. State , 1981 Wyo. LEXIS 349 ( 1981 )

ROONEY, Justice,

concurring.

I concur with the majority opinion but I want to point more specifically to the language of § 6-8-301, W.S.1977, Cum.Supp. 1980¹ and to the fact that the legislature used the words “imprisoned or confined” to mean two different things.

“ * * * We must give effect, if possible, to every word, clause and sentence of the statute. * * * The word ‘or’ is usually used in the disjunctive sense, and when two clauses are expressed in the disjunctive, this generally indicates alternatives, requiring separate treatment. [Citations.] In other words, the subject of each clause should be considered separately, without requiring that the subjects both be satisfied. * * * ” Basin Electric Power Cooperative v. State Board of Control, Wyo., 578 P.2d 557, 560 (1978).

And the legislature cannot be presumed to have used the words “imprisoned or confined” in the statute without full intention to ascribe separate meaning to the words “imprisoned” and “confined.” The legislature cannot be presumed to intend futile things. Yeik v. Department of Revenue and Taxation, Wyo., 595 P.2d 965 (1979); DeHerrera v. Herrera, Wyo., 565 P.2d 479 (1977).

Accordingly, it is unnecessary to attach a “constructive” meaning to the words “confined in any county jail” rather than to give them their literal meaning. This because the words “imprisoned” and “imprisoned in a county jail” have customarily included physical detention of any nature. The word “imprisonment” without more is taken to be detention in a county jail. Commonwealth v. Bausewine, 156 Pa.Super. 535, 40 A.2d 919 (1945) (Rev’d on other grounds, 354 Pa. 35, 46 A.2d 491); Ex Parte Cain, 20 Okl. 125, 93 P. 974 (1908); James v. Commonwealth, Ky., 259 S.W.2d 76 (1953). “Imprisonment” is any deprivation of liberty through use of force, or through express or implied threat of force. It is physical detention without confinement. McKendree v. Christy, 29 Ill.App.2d 195, 172 N.E.2d 380 (1961); Commonwealth v. Jones, 211 Pa.Super. 366, 236 A.2d 834 (1967); Hales v. McCrory-McLellan Corporation, 260 N.C. 568, 133 S.E.2d 225 (1963); Warner v. State, 189 Misc. 51, 68 N.Y.S.2d 60 (1947) (Rev’d on other grounds, 272 A.D. 954, 71 N.Y.S.2d 559); Savannah Guano Co. v. Stubbs, 138 Ga. 409, 75 S.E. 433 (1912). And of course, it includes an arrest or actual confinement in a penal or detention institution. Montgomery Ward & Co. v. Medline, 104 F.2d 485 (4th Cir. 1939); McAlmond v. Trippel, 93 Cal.App. 584, 269 P. 937 (1928); Commonwealth ex rel. Dailey v. Myers, 186 Pa.Super. 176, 142 A.2d 381 (1958); Ex Parte Harrison, D.C.Mass., 272 F. 543 (1921). It also includes the status while on “jail liberties” or “furlough” from a detention or penal institution. Commonwealth v. Bey, 221 Pa.Super. 405, 292 A.2d 519 (1972); Doyle v. Boyle, 19 Kan. 168 (1877); People v. Monaco, 54 Misc. 25, 105 N.Y.S. 401 (1907).

There can be no question but that the appellant was deprived of his liberty at all times subsequent to his arrest and until he escaped during his use of the restroom. He was imprisoned during that period. Since the use of the word “imprisoned” without more has reference to the county jail, appellant’s escape was in violation of § 6-8-301, W.S.1977, Cum.Supp.1980.

1 . See footnote 1 in majority opinion for text of § 6-8-301.