State v. Lowry, s. 437 and 438

• Citation: 139 S.E.2d 870,263 N.C. 536
• Decision Date: 29 January 1965
• Docket Number: Nos. 437 and 438,s. 437 and 438
• Parties: STATE, v. John C. LOWRY. STATE v. May MALLORY, Richard Crowder, Harold Reep and John Cyril Lowry, Defendants.
• Court: United States State Supreme Court of North Carolina

Page 870

139 S.E.2d 870

263 N.C. 536

STATE, v. John C. LOWRY.

STATE v. May MALLORY, Richard Crowder, Harold Reep and John Cyril

Lowry, Defendants.

Nos. 437 and 438.

Supreme Court of North Carolina.

Jan. 29, 1965.

Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Ralph Moody for the State.

Kunstler, Kunstler & Kinoy, New York City, Walter B. Nivens, Charlotte, and Richard J. Scupi, Washington, D. C., for defendant John C. Lowry.

Samuel S. Mitchell, Raleigh, and Walter S. Haffner, Good & Haffner, Cleveland, Ohio, for other defendants.

MOORE, Justice.

Defendant Lowry filed a different statement of the case on appeal from that filed by the other defendants, and a separate brief. To avoid needless repetition we discuss the appeal in one opinion. There are many assignments of error; we find it necessary to discuss only three.

I.

The defendants assert and contend that G.S. § 14-39 will not support an indictment and conviction, for that its terms are vague, uncertain, ambiguous, and indefinite 'so as to deprive appellants to due process of law as protected by the Fourteenth Amendment of the Federal Constitution' and Article I, section 17, of the Constitution of North Carolina.

In support of this contention appellants quote at length from 14 Am.Jur., Criminal Law, sec. 19, pp. 773-4, as follows: 'The Legislature in the exercise of its power to declare what shall constitute a crime or punishable offense, must inform the citizen with reasonable precision what acts it intends to prohibit, so that he may have a certain understandable rule of conduct and know what acts it is his duty to avoid. * * * If a statute uses words of no determinative meaning and the language is so general and indefinite as to embrace not only acts properly and legally punishable, but others not punishable, it will be declared void for uncertainty. It is axiomatic that statutes creating and defining crimes cannot be extended by intendment. * * * A statute the either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess as to its meaning and differ as to its application lacks the first essential of due process of law.' This is unquestionably a statement of sound principles. State v. Hales, 256 N.C. 27, 122 S.E.2d 768, 90 A.L.R.2d 804; State v. Morrison, 210 N.C. 117, 185 S.E. 674; State v. Partlow, 91 N.C. 550; Drake v. Drake, 15 N.C. 10. But from the text cited by appellants we find the following (pp. 774-5): 'A statute is not necessarily void for uncertainty because in creating a crime it does not define the offense, for if the offense is known to the common law, the common law definition may be adopted, even in jurisdictions where there are no common law crimes.'

'As a general rule, when an offense is declared by statute in the general terms of the common law, without more particular definition, resort may be had to the common law for the particular acts constituting the offense. In other words, regardless whether the common law has been abrogated, when 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, p. 59; McAdams v. State, 226 Ind. 403, 81 N.E.2d 671 (Ind.1948); State v. Pratt, 151 Me. 236, 116 A.2d 924 (1955); State v. Quatro, 31 N.J.Super. 51, 105 A.2d 913 (1954); State v. Johnson, 293 S.W.2d 907 (Mo.1956). While all federal crimes are created by statute, common-law words used in the statute may take their intended meaning from the common law. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 340 (1957).

Kidnapping was a criminal offense at common law. In North Carolina '[a]ll such parts of the common law as were heretofore in force and use * * *, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force.' G.S. § 4-1. The statutes of this jurisdiction relating to kidnapping, insofar as applicable to the instant case, did not originate the offense, they make kidnapping a felony and rovide the limit of punishment. Kidnapping was a misdemeanor at common law. 1 Am.Jur., 2d, Abduction and Kidnapping, § 3, p. 161. C.S. 4221 (P.L.1901, c. 699, § 1) provided that 'If any person shall forcibly or fraudulently kidnap any person he shall be guilty of a felony, and upon conviction may be punished in the discretion of the court, not exceeding 20 years in the State's prison.' This statute did not define 'kidnap'; the common-law definition applied. The common-law definition is stated and explained in State v. Harrison (1907), 145 N.C. 408, 59 S.E. 867, as follows:

'Blackstone and some other English authorities define kidnapping to be the 'forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another.' In East, Pleas of the Crown, vol. 1, p. 429, it is described as 'the most aggravated species of false imprisonment,' and defined to be 'the stealing and carrying away or secreting of any person.' 'The Supreme Court of New Hampshire,' says Bishop, 'more reasonably, and apparently not in conflict with actual decisions, held that transportation to a foreign country is not a necessary part of this offense.' Bish. New Crim.Law, vol. 2, § 750. The case referred to is State v. Rollins, 8 N.H. 550, and sustains the author's text. Bishop states the better definition of kidnapping to be 'false imprisonment, aggravated by conveying the imprisoned person to some other place.''

C.S. 4221 was repealed by G.S. § 14-39 (P.L.1933, c. 542), and the limit of punishment increased. The increase in the limit of punishment and enactment of other provisions (not pertinent here) were a direct result of the Lindbergh tragedy. G.S. § 14-39 does not define 'kidnap,' State v. Witherington, infra; it provides that 'It shall be unlawful for any person * * * to kidnap or cause to be kidnapped any human being * * *. Any person * * * violating * * * any provisions of this section, * * * and upon conviction therefor, shall be punishable be imprisonment for life.' This statute leaves the term of imprisonment in the discretion of the court, but increases the maximum term from 20 years to life. State v. Kelly, 206 N.C. 660, 175 S.E. 294.

The word 'kidnap,' in its application to the evidence in the case at bar, and as used in G.S. § 14-39, means the unlawful taking and carrying away of a person by force and against his will (the common-law definition). State v. Gough, 257 N.C. 348, 126 S.E.2d 118, 95 A.L.R.2d 441; State v. Dorsett, 245 N.C. 47, 95 S.E.2d 90; State v. Witherington, 226 N.C. 211, 37 S.E.2d 497; State v. Harrison, supra. It is the fact, not the distance of forcible removal of the victim that constitutes kidnapping. 1 Am.Jur., 2d, Abduction and Kidnapping, § 18, p. 172; People v. Oganesoff, 81 Cal.App.2d 709, 184 P.2d 953; People v. Wein, 50 Cal.2d 383, 326 P.2d 457, cert. den. 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99, reh. den. 358 U.S. 896, 79 S.Ct. 153, 3 L.Ed.2d 122.

The principles which appellants seek to apply are inapplicable. The word 'kidnap' is known to the common law, and the statute is construed according to the common-law definition.

II.

Defendants Lowry, Crowder and Reep moved for their discharge and the dismissal of proceedings against them, on the ground that their right to a speedy trial had been violated.

The offenses were allegedly committed on 27 August 1961. True bills of indictment were found and returned 31 August 1961, and defendants were brought to trial at the February Session 1964. The above named defendants had moved for trial at the May 1962 term of superior court.

'It is generally the policy of the law that criminal cases be promptly disposed of, * * * and the sixth amendment to the Federal Constitution guarantees to accused in a criminal prosecution under the federal law the right to a speedy trial. While this provisions does not apply to criminal prosecutions in the state courts under state laws, the right is generally guaranteed by state constitutional or statutory provisions.' 22A C.J.S. Criminal Law § 467(2), p. 20.

Defendants urgently contend that the speedy-trial guarantee of the Sixth Amendment is applicable to state proceedings under the provisions of the Fourteenth Amendment. But the affirmative of this proposition is not essential to the maintenance of defendants' rights. The fundamental law of this state secure to them the right of speedy trial. In State v. Patton, 260 N.C. 359, 132 S.E.2d 891, this Court declared:

'The right of a person formally accused of crime to a speedy and impartial trial has been guaranteed to Englishmen since Magna Carta, and the principle is embodied in the Sixth Amendment to the Federal Constitution, and in some form is contained in our State Constitution and in that of most, if not all, of our sister states, or, if not, in statutory provisions.

State v. Webb, 155 N.C. 426, 70 S.E. 1064 * * *.

'G.S. 15-10, entitled 'Speedy trial or discharge on commitment for felony,' requires simply that under certain circumstances 'the prisoner be discharged from custody and not that he got quit of further prosecution.' State v. Webb, supra.

'The Court said in Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950, 954: 'The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.'

'The constitutional right to a speedy trial is designed to prohibit arbitrary and oppressive delays which might be caused by the fault of the prosecution. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393; State v. Hadley, Mo., 249...