312 F.2d 163 (8th Cir. 1963), 17060, Davidson v. United States

Docket Nº:17060.
Citation:312 F.2d 163
Party Name:Doyle Francis DAVIDSON, Appellant, v. UNITED STATES of America, Appellee.
Case Date:January 21, 1963
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 163

312 F.2d 163 (8th Cir. 1963)

Doyle Francis DAVIDSON, Appellant,

v.

UNITED STATES of America, Appellee.

No. 17060.

United States Court of Appeals, Eighth Circuit.

January 21, 1963

James J. McGannon, Kansas City, Mo., for appellant.

F. Russell Millin, U.S. Atty., Kansas City, Mo., and John L. Kapnistos, Asst. U.S. Atty., for appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal in forma pauperis from a judgment of conviction and a sentence of ten years' imprisonment based upon the verdict of a jury finding the defendant (appellant) guilty of a violation of the Federal Kidnaping Act, 18 U.S.C. § 1201, 1 under an indictment filed September 29, 1961. 2

Page 164

Upon arraignment on October 20, 1961, the defendant entered his plea of not guilty. The trial of the case commenced December 6, 1961. Throughout the trial and since his conviction, the defendant has been ably represented by Mr. James J. McGannon, of the Kansas City, Missouri, Bar, who was appointed by the District Court. We are indebted to him for his briefing of this case on behalf of the defendant.

The defendant, a 45-year-old man, a welder by trade, on Saturday, April 29, 1961, while in Kansas City, Missouri, near Mulkey Park, enticed a six-year-old girl to get into his automobile and to accompany him while he drove to Kansas City, Kansas, and back. The Government claimed, and its evidence tended to prove, that, at some unknown time and at some unknown place during the drive, he molested the child sexually.

The explanation of the defendant for taking the girl with him without the knowledge or consent of her parents was that he had been drinking heavily; that he was looking for a baby sitter for a four-year-old son of his estranged wife, with whom he was intending to discuss divorce; that the six-year-old girl, who had been playing with other children in Mulkey Park, across the street from where she lived, came to his automobile and volunteered to be a baby sitter; that he gave her some money; that she got into the car and accompanied him on his drive to Kansas City, Kansas; and that he returned her to her father in the afternoon of that same day. He denied having molested her in any way or having restrained her from leaving him or his car at any time she chose.

Counsel for the defendant in his brief has stated the pertinent facts and outlined the evidence adduced at the trial, with commendable accuracy and fairness.

The defendant was arrested by the Kansas City, Missouri, police when he brought the girl back on April 29. He was held by them over Sunday, April 30, on suspicion of molestation. On Monday, May 1, about 11 A.M., he was interviewed by Agents of the Federal Bureau of Investigation, and gave them a statement. 3 He was taken before a United States Commissioner the afternoon of the same day.

Page 165

The judgment appealed from is challenged upon the following grounds: (1) that the indictment fails to state a federal offense; (2) that there is an inadequate evidentiary basis for the jury's verdict; (3) that the offense charged to the defendant does not come within the coverage of the Federal Kidnaping Act; (4) that it was error to admit in evidence the statement given by the defendant to the agents of the Federal Bureau of Investigation; and (5) that the right of the defendant to a speedy trial, guaranteed by the Sixth Amendment of the Constitution, was violated.

We think the indictment sufficiently charged the defendant with a violation of the Federal Kidnaping Act. See and compare, Dawson v. United States, 9 Cir., 292 F.2d 365, 366; Hayes v. United States, 8 Cir., 296 F.2d 657, 665-667. In Hewitt v. United States, 8 Cir., 110 F.2d 1, 6 (cert. denied 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409), this Court said:

'The sufficiency of an indictment should be judged by practical, and not by technical, considerations. It is nothing but the formal charge upon which an accused is brought to trial. An indictment which fairly informs the accused of the charge which he is required to meet and which is sufficiently specific to avoid the danger of his again being prosecuted for the same offense should be held good.'

See, also, Smith v. United States, 360 U.S. 1, 9, 79 S.Ct. 991, 996, 3 L.Ed.2d 1041 and cases cited.

There was an adequate evidentiary basis for the verdict of the jury if what the Government's evidence showed the defendant had done in enticing, transporting and molesting the child constituted a violation of the Act. Counsel for the defendant believes that, giving to the Government the benefit of all favorable evidence and inferences, it failed to establish that the defendant was guilty of an offense within the intended coverage of the Act. There was adequate direct evidence of inveiglement of the child and of her interstate transportation, and sufficient circumstantial evidence of her molestation, to make the question whether the defendant had done what the Government charged a question for the jury.

Page 166

The argument that, under the decision of the Supreme Court in Chatwin v. United States, 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198, the instant case was not one within the coverage of the Act, is not without force. The Chatwin case is readily distinguishable from this case on its facts. That case involved no semblance of involuntary restraint of the alleged victim and no unconsented-to transportation in interstate commerce. It is the language of Mr. Justice Murphy, on pages 464-465 of 326 U.S., page 237 of 66 S.Ct.[ 4 that is thought to indicate that the inveiglement, interstate transportation and sexual abuse of children is to be regarded as a local crime, 'lacking the characteristics of true kidnapings'. In Homan v. United States, 8 Cir., 279 F.2d 767 (cert. denied 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88), this Court sustained a conviction, under the Federal Kidnaping Act, of a defendant who was also clearly guilty of rape under Iowa law. In Dusky v. United States, 8 Cir., 295 F.2d 743, cert. denied 368 U.S. 998, 82 S.Ct. 625, 7 L.Ed.2d 536, involving the transportation of a girl from Kansas to Missouri after she had been taken from the latter State to Kansas for purposes of rape, we sustained the conviction of Dusky under the Federal Kidnaping Act, although he might well have been prosecuted for rape by the State of Kansas. See also and compare, Eidson v. United States, 10 Cir., 272 F.2d 684, 687, a case resembling this one.

Not without some misgivings, we hold that the Chatwin case does not require the reversal of the conviction of the defendant in this case.

When the defendant enticed the six-year-old child into his automobile and drove away with her, that, in our opinion, constituted an involuntary and illegal seizure and restraint, and brought his conduct within the Act. Cf. United States v....

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