State v. Barbour , 278 N.C. 449 ( 1971 )

180 S.E.2d 115 (1971) 278 N.C. 449

STATE of North Carolina
v.
Mitchell Wayne BARBOUR.

No. 65.

Supreme Court of North Carolina.

April 14, 1971.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. William B. Ray, for the State.

Wallace Ashley, Jr., Smithfield, for defendant-appellant.

BOBBITT, Chief Justice.

At common law and as used in G.S. § 14-39, the word "kidnap" means the unlawful taking and carrying away of a human being by force and against his will. State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965), appeal dismissed and certiorari denied, Mallory v. North Carolina, 382 U.S. 22, 86 S. Ct. 227, 15 L. Ed. 2d 16 (1965).

"The use of actual physical force or violence is not always essential to the commission of the offense of kidnapping * * *. The crime of kidnapping is frequently committed by threats and intimidation and appeals to the fears of the victim which are sufficient to put an ordinarily prudent person in fear for his life or personal safety, and to overcome the will of the victim and secure control of his person without his consent and against his will, and are equivalent to the use of actual force or violence." State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966).

Although not germane to the present case, it is noteworthy that the unlawful taking and carrying away of a human being fraudulently is kidnapping within the meaning of G.S. § 14-39. State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962).

Defendant assigns as error the denial of his motion for judgment as in case of nonsuit. He points out that defendant got on the truck lawfully in response to Wood's invitation. Based on these facts, defendant contends there was no "unlawful taking" and therefore the State failed to establish one of the essential elements of the crime of kidnapping. The contention is without merit.

"Where the gravamen of the crime is the carrying away of the person, the place from or to which the person is transported is not material, and an actual asportation of the victim is sufficient to constitute the offense without regard to the extent or degree of such movement; it is the fact, not the distance, of forcible removal which constitutes kidnapping." 51 C.J.S. Kidnapping § 1, pp. 502-503. Accord, State v. Lowry, supra.

Standing alone, the fact that the taking and carrying away of Wood was accomplished by means of a truck owned and operated by Wood is of no avail as a defense to the alleged kidnapping. State v. Bruce, supra; 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). In each of these cases, the defendant unlawfully boarded the car of the victim.

In State v. Penley, 277 N.C. 704, 178 S.E.2d 490 (1971), the defendant, one of a group of prisoners being transported on a prison bus, was convicted of kidnapping the officer-driver thereof. There, the defendant was required rather than invited to enter the bus. Accord, People v. Valdez, 3 Cal. App. 2d 700, 40 P.2d 592 (1935). Valdez is cited in support of this statement: "It is not necessary, however, for the unlawfulness to exist from the beginning of the transaction." 1 Am.Jur.2d Abduction and Kidnapping § 12, p. 168.

No decision of this Court has come to our attention where a motorist who invited a hitchhiker to ride with him is compelled by the force and intimidation exerted upon him by the hitchhiker to abandon his own desired course of travel and to drive his car as commanded by the hitchhiker.

No case involving this factual situation has come to our attention except the companion cases of Krummert v. Commonwealth, 186 Va. 581, 43 S.E.2d 831 (1947), and Famular v. Commonwealth, 186 Va. 586, 43 S.E.2d 833 (1947). Krummert and Famular were standing on a street corner in Richmond, "waiting to catch a ride," when a motorist offered to take them to a street intersection where they could "best catch a ride" to Washington, D.C. Accepting the motorist's invitation, Krummert and Famular boarded the car. When the motorist stopped at the indicated street intersection, Krummert and Famular, instead of getting out of the car, proceeded to take charge. At gunpoint, they forced other passengers of the motorist to get out and ordered the motorist to drive them on north and out on the Washington highway. About ten miles out of Richmond, the car was stopped by a State Traffic Officer after he had shot one of the rear tires. Under these circumstances, Krummert and Famular were arrested and thereafter tried and convicted of kidnapping.

It may be conceded that there was no unlawful taking and no unlawful carrying away of Wood by force and against his will at the inception and during the first four miles or so of defendant's travel with Wood. But there was an unlawful taking and carrying away of Wood by defendant from the time defendant held a knife against the throat and chest of Wood and, under threat of killing him, commanded and caused him against his will to abandon his own plans and drive the truck as directed by defendant. By acquiring dominance and control over Wood's person and actions in this manner, defendant forfeited his status as an invitee and his conduct is to be judged as if at that time he unlawfully boarded Wood's truck.

Defendant assigns as error the admission of Mrs. Turner's testimony that, when she telephoned to her husband from Smith's house, she told him "to be sure to get the keys out of the truck and make the kids stay in the house." This testimony was included in Mrs. Turner's response to a general question on cross-examination. When Mrs. Turner had completed her answer, defendant entered a general objection "to this." The objection was overruled. There was no motion to strike. Rather than lay stress on any failure of defendant to preserve an objection to this testimony, this assignment of error is overruled on the broad ground that this testimony, when considered in the context of the entire evidence, was not of sufficient significance to constitute prejudicial error. "Where there is abundant evidence to support the main contentions of the state, the admission of evidence, even though technically incompetent, will not be held prejudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result." 3 Strong, North Carolina Index 2d, Criminal Law § 169, p. 135. Accord, State v. Barrow, 276 N.C. 381, 388, 172 S.E.2d 512, 517 (1970); State v. Williams, 275 N.C. 77, 89, 165 S.E.2d 481, 489 (1969), and cases cited.

Defendant assigns as error the portions of the court's instructions relating to the separate assault charge which define and apply "deadly weapon." We perceive no error in the challenged instructions.

It is noted that the Superior Court has jurisdiction to try a misdemeanor which may be properly consolidated for trial with a felony under G.S. § 15-152. G.S. § 7A-271(a) (3). See State v. Wall, 271 N.C. 675, 157 S.E.2d 363 (1967). Since the kidnapping and assault charges arose out of the same transaction and elements of the assault charge are essentials of the kidnapping charge, the consolidation of the assault and kidnapping charges was permissible under G.S. § 15-152. There was no objection to the consolidation and we find no prejudice to defendant on account thereof.

In the factual situation presented by the evidence, a finding that defendant was guilty of an assault was prerequisite to a finding that defendant was guilty of kidnapping. Thus, when the jury convicted defendant of kidnapping, their verdict necessarily included a conviction of assault. On the other hand, if the jury had found defendant not guilty of kidnapping, such verdict would not have precluded a verdict of guilty of assault with a deadly weapon or of simple assault. Since the jury found defendant guilty of kidnapping and of assault, and since the assault for which defendant was charged in the warrant is the identical assault referred to in the bill of indictment, and since the cases were consolidated for judgment, no possible harm has come to defendant on account of errors, if any, in the judge's instructions with reference to the definition of a deadly weapon when charging the jury in respect of the separate assault charge.

Defendant assigns as error the court's instructions to the effect that defendant's failure to testify was not to be considered against him. Although the instruction is meager and is not commended, we are constrained to hold that it meets minimum requirements. Ordinarily, it would seem better to give no instruction concerning a defendant's failure to testify unless such an instruction is requested by defendant. See State v. Jordan, 216 N.C. 356, 5 S.E.2d 156 (1919).

Prior to the enactment of Chapter 542, Public Laws of 1933, our statute (C.S. 4221) provided that a person convicted of kidnapping "may be punished in the discretion of the court, not exceeding twenty years in the state's prison." Seemingly as a result of the Lindbergh tragedy, the 1933 Act repealed C.S. 4221. The provisions of the 1933 Act, now codified as G.S. § 14-39, include the following: "It 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 * * *. Any person * * * violating * * * any provisions of this act shall be guilty of a felony, and upon conviction therefor, shall be punishable by imprisonment for life. * * *" Under our decisions, this statute leaves the term of imprisonment in the discretion of the court, imprisonment for life being the maximum punishment. State v. Lowry, 263 N.C. supra at 541, 139 S.E.2d at 874; State v. Bruce, 268 N.C. supra at 184, 150 S.E.2d at 224; State v. Kelly, 206 N.C. 660, 175 S.E. 294.

Since none of defendant's assignments disclose prejudicial error, the verdict and judgment will not be disturbed.

No error.