State v. Roberts , 286 N.C. 265 ( 1974 )

210 S.E.2d 396 (1974) 286 N.C. 265

STATE of North Carolina
v.
James C. ROBERTS.

No. 85.

Supreme Court of North Carolina.

December 30, 1974.

Atty. Gen. James H. Carson, Jr., and Associate Atty. John R. Morgan, Raleigh, for the State.

Thomas F. Loflin, III, Durham, for defendant.

BOBBITT, Chief Justice.

There was ample evidence to support the verdict of guilty of assault on a child under twelve years of age, which on 18 July 1971 was a misdemeanor "punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment not to exceed six (6) months, or both such fine and imprisonment ...." G.S. § 14-33(b)(5) and (c)(3). Defendant did not move to nonsuit this charge. Nor does he now contend the evidence was insufficient to support his conviction thereon. With reference to this charge, Judge Bailey instructed the jury as follows: "[I]f you find from the evidence and beyond a reasonable doubt that on or about the 18th of July, 1971, James Clifford Roberts intentionally and without justification or excuse grabbed Kathy Cates by the arm and pulled her any distance against her will and against her wishes, and further find that at that time Kathy Cates had not reached her 12th birthday, and further find that at that time Clifford Roberts was a male person, it would be your duty to return a verdict of guilty of an assault on a child under the age of 12." (Our italics.)

On defendant's first appeal, the Court of Appeals affirmed Judge Bailey's denial of defendant's motion to nonsuit the kidnapping (second) count. 18 N.C.App. 388, 197 S.E.2d 54 (1973). Because of the interlocutory aspects of that decision, defendant's application for certiorari for immediate review thereof was denied by this Court, 283 N.C. 758, 198 S.E.2d 728. Whether defendant's motion should have been granted is now presented for decision.

With reference to the kidnapping (second) count, Judge Bailey charged the jury as follows: "[I]f you find from the evidence and beyond a reasonable doubt that on or about the 18th of July, 1971, James Clifford Roberts wilfully and intentionally took Kathy Cates and carried her from a place in the driveway of this nursery to the foot of the steps leading into the nursery against her will and without lawful authority, by the use of force such as the grabbing of her arm and the forcible tugging her along, it would be your duty to return a verdict of guilty of kidnapping." (Our italics.)

"Kidnapping" was a criminal offense at common law, a misdemeanor. By virtue of the statute now codified as G.S. § 4-1, the common law with reference to kidnapping became the law of this State. There had been no statutory modification thereof prior to the effective date (14 March 1901) of Chapter 699, Public Laws of 1901. Nor does it appear that any prosecution for "kidnapping" had been reviewed by this Court.

The 1901 Act provided that "any person who shall forcibly or fraudulently kidnap any person shall be guilty of a crime, and upon conviction may be punished in the discretion of the Court not exceeding twenty years in the State's prison." (Our italics.) When codified, the wording of the 1901 Act was modified by substituting the word "felony" for the word "crime". Revisal (1905), Sec. 3634, C.S.1919, Sec. 4221.

"[W]hen a statute punishes an act giving it a name known to the common law, without otherwise defining it, the statute is construed according to the common-law definition." 22 C.J.S. Criminal Law § 21. Based thereon, indictments charging simply that the accused kidnapped a named person have been upheld as sufficient. State v. Lowry, 263 N.C. 536, 539-540, 139 S.E.2d 870, 873 (1965). However, elements of the common law crime of kidnapping had been stated differently by well recognized commentators. State v. Harrison, 145 N.C. 408, 417-418, 59 S.E. 867, 870-871 (1907); State v. Gough, 257 N.C. 348, 352-353, 126 S.E.2d 118, 121-122 (1962); State v. Lowry, supra, at 539-540, 139 S.E.2d at 873-874; State v. Dix, 282 N.C. 490, 493, 193 S.E.2d 897, 899 (1973).

Our research indicates that the first prosecution for kidnapping reviewed by this Court was State v. Harrison, supra. The opinion of Justice Brown quoted among others the definition of kidnapping found in 4 Blackstone's Commentaries 219, to wit: "[T]he forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another.. . ." This Court held that kidnapping did not require (or no longer requires) that the victim be carried away from his own country to another. Harrison's conviction for kidnapping an eight-year-old neighbor boy in Currituck County was upheld. There was no evidence that the victim was ever found alive or that a body identified as that of the victim was found.

Our research indicates the only other decision of this Court which reviewed a conviction for kidnapping alleged to have been committed when our statute law consisted of the 1901 Act is State v. Marks, 178 N.C. 730, 101 S.E. 24 (1919). In Marks, the defendant was indicted for kidnapping but convicted of an assault on a woman. In upholding the verdict and judgment, Chief Justice Clark, for the Court, noted that the evidence justified the action of the trial judge in submitting the kidnapping charge to the jury.

Our present statute was enacted as Chapter 542, Public Laws of 1933. It became effective 15 May 1933 and is now codified as G.S. § 14-39. It superseded the 1901 Act.

The 1933 Act in pertinent part, provided that "[i]t shall be unlawful for any person. . . to kidnap . . . any human being, or to demand a ransom of any person. . . to be paid on account of kidnapping, or to hold any human being for ransom. . ."; and that any person convicted of a violation of the statute "shall be punishable by imprisonment for life." (Our italics.)

Seemingly, the Lindbergh tragedy prompted the enactment of the 1933 Act. As interpreted by this Court, the 1933 Act leaves the term of imprisonment in the discretion of the court, imprisonment for life being the maximum punishment. State v. Kelly, 206 N.C. 660, 663, 175 S.E. 294, 296 (1934); State v. Lowry, supra, at 541, 139 S.E.2d at 874; State v. Bruce, 268 N.C. 174, 184, 150 S.E.2d 216, 224 (1966).

In State v. Smith, 210 N.C. 63, 185 S.E. 460 (1936), the conviction of defendants for kidnapping was reversed although the convictions for conspiracy to assault and simple assault were upheld. [Note: The record in Smith discloses a factual situation similar in many respects to that involved in such later cases as State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962), and State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971).]

Subsequent cases involving diverse factual situations in which convictions for kidnapping have been upheld include the following: State v. Kelly, supra; State v. Witherington, 226 N.C. 211, 37 S.E.2d 497 (1946); State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949); State v. Dorsett, 245 N.C. 47, 95 S.E.2d 90 (1956); State v. Gough, supra; State v. Lowry, supra; State v. Bruce, supra; State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); State v. Arsad, 269 N.C. 184, 152 S.E.2d 99 (1967); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969); State v. Woody, 277 N.C. 646, 178 S.E.2d 407 (1971); State v. Penley, 277 N.C. 704, 178 S.E.2d 490 (1971); State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v.

Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971); State v. Maynor, 278 N.C. 697, 180 S.E.2d 856 (1971); State v. High, 279 N.C. 487, 183 S.E.2d 633 (1971); State v. Murphy, supra.

No attempt will be made to reconcile all cited cases. Suffice to say, no single common-law definition seems sufficient to cover all of the factual situations in the cases in which convictions have been upheld. In general, it appears that, subsequent to the increase in maximum punishment authorized by the 1933 Act, our decisions have tended to relax the common-law requirements for conviction of kidnapping, at least until the decision of this Court in State v. Dix, 282 N.C. 490, 193 S.E.2d 897 (1973).

In State v. Ingland, supra, a new trial was awarded on account of error in the court's instructions to the jury. Inter alia, this Court held that the unlawful seizure and detention of a human being for the purpose of unlawfully taking and carrying him away against his will by force or fraud or intimidation was false imprisonment but not kidnapping. In so holding, the Court, in an opinion by Justice Huskins, withdrew as unauthoritative contrary expressions in prior opinions. It was stated, "[C]ommonlaw kidnapping contemplates, in addition to unlawful restraint, a carrying away of the person detained. State v. Harrison, 145 N.C. 408, 59 S.E. 867 (1907), quotes Bishop's definition of kidnapping as ``"false imprisonment, aggravated by conveying the imprisoned person to some other place."'" See 2 Bishop, Criminal Law § 750 (9th ed. 1923). For a discussion of the elements of the common law crime of false imprisonment, see State v. Ingland, supra, at 51, 178 S.E.2d at 582-583.

As held in Ingland, the word KIDNAP, as used in G.S. § 14-39, means the unlawful taking and carrying away of a human being against his will by force or fraud or threats or intimidation. In the present case, the questions are whether the evidence was sufficient to show (1) that defendant falsely imprisoned Kathy, and (2) that he unlawfully carried her away by force, in such manner as to constitute the felony of kidnapping.

No attempt will be made to mark out the limits of what constitutes a false imprisonment or a carrying away sufficient to satisfy these elements in the crime of kidnapping. Here, the entire incident occurred during the seconds it took defendant to pull Kathy a distance of 80 to 90 feet, at a time when Larry and Sue were screaming and running for readily available help and Kathy was resisting by word and by deed defendant's efforts to make her go along with him. To constitute the crime of kidnapping the defendant (1) must have falsely imprisoned his victim by acquiring complete dominion and control over him for some appreciable period of time, and (2) must have carried him beyond the immediate vicinity of the place of such false imprisonment. We hold the evidence, when considered in the light most favorable to the State, insufficient to establish either the false imprisonment or the carrying away element of the felony of kidnapping.

The only requirement for a conviction of kidnapping under the instructions given the jury was that the State satisfy the jury from the evidence beyond a reasonable doubt that defendant "wilfully and intentionally took Kathy Cates and carried her from a place in the driveway of this nursery to the foot of the steps leading into the nursery against her will and without lawful authority, by the use of force such as the grabbing of her arm and the forcible tugging her along." These facts alone are insufficient to constitute the felony of kidnapping. Yet they were the facts in evidence upon which the court had to base his instructions.

We note that the trial judge dismissed the charge of assault with intent to commit rape. We further note there is no evidence that defendant subdued Kathy by the use or threatened use of a deadly weapon. Nor is there any evidence that he struck her or attempted to abuse or fondle her. Nothing in the evidence suggests that defendant intended to grab Kathy rather than Larry or Sue. Although the State suggests defendant had broken the lock to the back door to the nursery, there is no evidence as to when or by whom the lock was broken. The fact that the lock had been broken off and was found at the foot of the stairs when Officer Hamlet returned to the scene an hour or more after he had taken defendant to the office of Captain Seagroves falls far short of establishing that defendant had broken the lock.

With reference to the kidnapping (second) count in the bill of indictment, the conclusion reached is that defendant's motion for judgment of nonsuit should have been granted. Hence, as to the kidnapping charge, the decision of the Court of Appeals is reversed.

The conduct of defendant cannot be condoned. An unlawful and unexplained assault by an adult male upon a seven-year-old girl must be regarded as base and contemptible. Yet, since Kathy was rescued immediately, unharmed, the offense under consideration cannot be considered the sort of conduct for which life imprisonment is permissible and for which a sentence of imprisonment for sixty years was actually imposed.

With reference to the first count, the judgment pronounced by the trial judge imposed the maximum sentence for an assault upon a child under the age of twelve years committed on 18 December 1971. We note that G.S. 14-33(b)(5) and (c)(3) as amended now provide as punishment for this offense "a fine, imprisonment for not more than two years, or both such fine and imprisonment." G.S. 1B, Replacement 1969, 1973 Cumulative Supplement.

We find no error in the trial with reference to the charge of an assault upon a child under the age of twelve years. Nor do we find error in the denial by Judge Clark of defendant's motion to dismiss for alleged denial of his constitutional right to a speedy trial. There remains for consideration the status of the judgment pronounced upon defendant's conviction of assault on a child under the age of twelve years.

In respect of pre-trial time spent in custody, and in conformity with the credit Judge Bailey had allowed in the judgment entered at 18 September 1972 Session, the Court of Appeals extended the credit provided for in Judge Clark's order of 3 December 1973 as set out above. However, we note the credit allowed by Judge Clark as well as the extended credit allowed by the Court of Appeals exceeds the period of six months for which defendant was sentenced upon conviction of assault upon a child under the age of twelve years.

In the judgment pronounced at 18 September 1972 Session for assault on a child under twelve years of age, Judge Bailey imposed the maximum permissible sentence of six months and the maximum permissible fine of $500. Defendant's indigency had been established on 30 August 1971.

In Williams v. Illinois, 399 U.S. 235, 90 S. Ct. 2018, 26 L. Ed. 2d 586 (1970), involving an indigent defendant, an Illinois court had imposed the maximum statutory prison sentence and in addition had ordered the payment of a fine and costs. The Supreme Court of the United States held that "the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status." Id. at 244, 90 S. Ct. at 2023-2024, 26 L.Ed.2d at 594. The following excerpts from the opinion of Chief Justice Burger indicate the precise limits of the decision: "[W]hen the aggregate imprisonment exceeds the maximum period fixed by the statute and results directly from an involuntary nonpayment of a fine or court costs we are confronted with an impermissible discrimination that rests on ability to pay. . . ." Id. at 240-241, 90 S. Ct. at 2022, 26 L.Ed.2d at 592-593. Again: "Since only a convicted person with access to funds can avoid the increased imprisonment, the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum. By making the maximum confinement contingent upon one's ability to pay, the State has visited different consequences on two categories of persons since the result is to make incarceration in excess of the statutory maximum applicable only to those without the requisite resources to satisfy the money portion of the judgment." Id. at 242, 90 S. Ct. at 2023, 26 L.Ed.2d at 593-594.

On authority of Williams v. Illinois, supra, we hold that the present indigent defendant may not be imprisoned further on account of his failure to pay the fine and costs. See also, Tate v. Short, 401 U.S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971); Annot., Indigency of Offender As Affecting Validity of Imprisonment As Alternative to Payment of Fine, 31 A.L.R.3rd 926 (1970), and supplemental decisions.

With reference to kidnapping, the decision of the Court of Appeals finding no error in the trial and affirming the judgment is reversed.

As to assault on a child under the age of twelve years, the defendant, being entitled to credit for pre-trial time spent in custody in excess of the valid sentence of six months, is entitled to his discharge from imprisonment with reference to that offense.

Accordingly, the defendant is entitled to be discharged forthwith upon a determination that there are no other criminal charges pending against him.

As to kidnapping: Reversed.

As to assault: No error in the trial and sentence of six months, but defendant entitled to discharge from further imprisonment on account of credit for pre-trial time spent in custody in excess of six months.

LAKE, J., concurs in result.

HUSKINS, Justice (dissenting in part).

The word "kidnapping," as used in G.S. 14-39, means the unlawful taking and carrying away of a human being against his will by force or fraud or threats or intimidation. State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966); State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965); State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962); G.S. 4-1. This definition of kidnapping was generally understood prior to decision of this Court in State v. Dix, 282 N.C. 490, 193 S.E.2d 897 (1973).

The Dix decision holds that there was not a sufficient "asportation" or "carrying away" to constitute the offense of kidnapping where defendant forced a jailer at gun point to go from the front door of the jail to the jail cells, a distance of about 62 feet, where he compelled the jailer to release three prisoners and then locked the jailer in a cell. Prior to Dix the distance the victim was "carried away" was immaterial. The controlling factor was whether the victim in fact was unlawfully taken and carried away by force or fraud or threats or intimidation. Under Dix, the distance seems to be the controlling factor with consideration given to whether the asportation was "merely technical" or whether the victim was removed from one "environment" to another. We said in our dissent to Dix that the majority opinion waters down the law "and creates uncertainties of unknown dimensions." The soundness of that observation is demonstrated by the majority opinion here.

Here, it is perfectly apparent that defendant went to the playground to assault and molest the children who were playing there. When they attempted to run away, defendant jumped in front of Kathy, a seven-year-old girl, and grabbed her. When she told him to let her go, defendant said "shut up" and dragged her, screaming and protesting, a distance of 80 to 90 feet to the back door of the building, the lock to which had been forcibly broken off. When Kathy's father overtook him there in response to the screams of the children and demanded to know what he was doing with Kathy, defendant said, "I am just taking her to show her where somebody broke in." The broken lock from the door was found at the same place where defendant was apprehended by Kathy's father. The only legitimate, logical inference to be drawn from these facts is that defendant knew the lock was broken (whether he did it or not) and was dragging the child into the building to assault her. The majority now decides that Kathy was neither falsely imprisoned nor kidnapped because "the entire incident occurred during the seconds it took defendant to pull Kathy a distance of 80 to 90 feet, at a time when Larry and Sue were screaming and running for readily available help and Kathy was resisting by word and by deed defendant's efforts to make her go along with him. To constitute the crime of kidnapping the defendant (1) must have falsely imprisoned his victim by acquiring complete dominion and control over him for some appreciable period of time, and (2) must have carried him beyond the immediate vicinity of the place of such false imprisonment. We hold the evidence, when considered in the light most favorable to the State, insufficient to establish either the false imprisonment or the carrying away element of the felony of kidnapping." Thus, in Dix the victim was carried 62 feet but he was not "carried away enough" to constitute kidnapping. Here, the victim was dragged 80 to 90 feet but the majority holds she was not "carried away enough." Moreover, additional requisites are now prescribed. Unless the accused (1) acquires complete dominion and control over his victim (2) for some appreciable period of time, and (3) carries the victim beyond the immediate vicinity of the place where he acquired complete dominion and control, he is not guilty of kidnapping. Our next duty, in cases to come, will require us to define the meaning of "complete dominion and control," "appreciable period of time," and "immediate vicinity." Those definitions will only dig up more snakes.

Established law is always left more indefinite, more uncertain, and more unenforceable when courts begin to tamper with it. Such is the case here. The majority decision is the first offspring of Dix. There will be others; and the law of kidnapping will become, if in fact it has not already, a jumble which officers and prosecutors can neither understand nor enforce. Meter sticks and measuring tapes are strange but necessary aids in determining whether a kidnapping has been committed. Perhaps divining rods are next.

For the reasons stated here and in my dissent in State v. Dix, I respectfully dissent from that part of the majority opinion which holds that the evidence is insufficient to establish either false imprisonment or kidnapping. See State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971), where those two crimes are defined and distinguished, each from the other.

HIGGINS, J., joins in this dissenting opinion.