Bistram v. United States, 15594

• Decision Date: 18 October 1956
• Docket Number: No. 15594,15595.,15594
• Parties: Carl Harvey BISTRAM, Appellant, v. UNITED STATES of America, Appellee. Carl Harvey BISTRAM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

237 F.2d 243 (1956)

Carl Harvey BISTRAM, Appellant, v. UNITED STATES of America, Appellee.

Carl Harvey BISTRAM, Appellant, v. UNITED STATES of America, Appellee.

Nos. 15594, 15595.

United States Court of Appeals Eighth Circuit.

October 18, 1956.

Carl Harvey Bistram, pro se.

Robert Vogel, U. S. Atty., Fargo, N. D., on the brief for appellee in Case No. 15,594, and on Petition to Remand in Case No. 15,595.

Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit Judges.

GARDNER, Chief Judge.

Appellant, with two others, was charged by indictment with the commission of the crime of kidnapping as defined by Section 1201(a), Title 18, U.S.C. The indictment so far as here material reads as follows:

"That on or about the 6th day of June, 1949, one Arthur Earl Bistram, one Carl Harvey Bistram and one Allen Chester Hartman, hereinafter designated as the defendants, knowingly transported in interstate commerce from Mandan, State and District of North Dakota, to the vicinity of Laurel, State and District of Nebraska, one Ralph Alex Senn who had theretofore been unlawfully seized, abducted and kidnaped, carried away and held by said defendants for the purpose of aiding said defendants to escape arrest."

Each of the defendants was represented by his own counsel and each entered a plea of guilty. On October 28, 1949, pursuant to his plea of guilty appellant was sentenced to thirty years imprisonment. The record discloses that the victim of the kidnapping charge was a Mandan, North Dakota policeman and that in connection with the kidnapping of the policeman his automobile was stolen and that he was transported in successive stolen automobiles from Mandan, North Dakota to the vicinity of Laurel, Nebraska and the named defendants were, in addition to being charged with kidnapping, indicted for violation of the Dyer Act, 18 U.S.C. §§ 10, 2311-2313, to which charge each of the defendants entered a plea of guilty. Sentences imposed on pleas of guilty to violations of the Dyer Act were made to run concurrently with the sentences imposed under the indictment charging kidnapping in the instant case and are not here involved.

On February 20, 1956, appellant filed a motion to vacate and set aside the judgment on the ground that the sentencing court lacked jurisdiction in that the indictment failed to charge that the appellant did not come within the exception clause set out in paragraph (a), Section 1201, Title 18, U.S.C., viz. "except, in the case of a minor, by a parent thereof". The motion was overruled and appellant has appealed from the order overruling his motion and this is the subject of appeal numbered 15,594. He seeks reversal on substantially the following ground: An indictment charging violation of Title 18 U.S.C., Section 1201(a) which fails to negative the exception in the statute which excludes a parent from operation of the statute is so defective as to require a conviction under the indictment to be vacated on motion pursuant to Title 28 U.S.C. § 2255.

Section 1201(a), Title 18, U.S.C., under which the indictment in the instant case was drawn provides as follows:

"Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall be punished (1) by death if the kidnaped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed."

It is contended that the omission from the indictment of the words, "except, in the case of a minor, by a parent thereof," rendered the indictment fatally defective. If the words constituting the exception were omitted from the statute the crime of kidnapping would still be fully defined. The court had jurisdiction of the crime, the elements of which were fully defined, and it also had jurisdiction of the appellant. The generally accepted rule is that the exception need not be negatived unless it is an essential element in the statutory definition of the crime. McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301; Seele v. United States, 8 Cir., 133 F.2d 1015; Miller v. United States, 8 Cir., 123 F.2d 715; Knight v. Hudspeth, 10 Cir., 112 F.2d 137; Nicoli v. Briggs, 10 Cir., 83 F.2d 375; Rase v. United States, 6 Cir., 129 F.2d 204. In Seele v. United States, supra, we said 133 F.2d 1019:

"It is now the settled rule, as declared by the Supreme Court of the United States, `that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.\'"

It is to be noted that the appellant does not in his motion or otherwise claim that the person kidnapped was his minor child. In the absence of such a claim the argument becomes purely academic. United States v. Moore, 7 Cir., 166 F.2d 102; United States v. Bremer, 9 Cir., 207 F.2d 247, 250. In United States v....