State v. . Smith , 210 N.C. 63 ( 1936 )

Defendants Smith, Tudor, and Gray were indicted for kidnapping one Frank Mitchell, and also for unlawful conspiracy to assault and beat said Mitchell.

At the close of the State's evidence, and again at the close of all the evidence, the defendants moved for judgment of nonsuit and excepted to the refusal to grant said motion.

There was verdict of guilty as to the three defendants on the charge of kidnapping, verdict of guilty as to defendants Smith and Tudor on charge of conspiracy, and verdict of guilty of simple assault as to defendant Gray.

From judgment on the verdicts defendants appealed. An examination of the evidence in this case leads us to the conclusion that the defendants' motion for judgment of nonsuit on the charge of kidnapping should have been allowed.

It appears that defendants suspected the State's witness Mitchell of having taken a pistol belonging to Tudor, who is his wife's first cousin. Defendants Smith and Tudor accosted him at a dance hall in Roanoke Rapids, North Carolina, and expressed the desire to talk with him. He testified that he went across street with Tudor of his own free will. though Tudor held his arm, and that he got in an automobile with Smith, Tudor, and two women; that he was then driven across the river a short distance to a secluded place, and there charged with taking the pistol. Upon his denial, Smith struck him on the ear with his fist, and he ran. He testified he was pursued, overtaken, and struck again in the back, and was put back in the automobile by Smith and Tudor and finally brought back to the dance hall, where he got out. It did not appear that either force or fraud was exerted to compel Mitchell to enter the automobile with defendants, nor that they had any other purpose than to question him about the pistol, and upon his denial to beat him. No weapons of any kind were used, and no serious injury was done him.

The evidence falls short of the definition of kidnapping given in S. v.Harrison, 145 N.C. 408, and S. v. Marks, 178 N.C. 730.

There was, however, evidence sufficient to warrant the verdict and judgment against defendants Smith and Tudor on charges of unlawful conspiracy to assault the witness Mitchell, and to sustain the conviction of Gray for simple assault.

The conviction and judgment as to defendants Smith and Tudor on charges of conspiracy and the conviction and judgment as to defendant Gray on charge of simple assault are affirmed.

The judgment and sentences as to the other defendants on charge of kidnapping must be stricken out in accordance with this opinion.

Modified and affirmed.