Doss v. State

• Decision Date: 27 June 1929
• Docket Number: 6 Div. 412.
• Citation: 123 So. 231,220 Ala. 30
• Parties: DOSS v. STATE.
• Court: Alabama Supreme Court

123 So. 231

220 Ala. 30

DOSS v. STATE.

6 Div. 412.

Supreme Court of Alabama

June 27, 1929

Certiorari to Court of Appeals.

Eugene Doss was convicted of an offense, and appealed to the Court of Appeals. The judgment of conviction being there reversed the State applies for certiorari to the Court of Appeals to review and revise its judgment and decision in said case, 123 So. 237. Writ denied.

Charlie C. McCall, Atty. Gen., and Thos. E. Knight, Jr., Asst. Atty Gen., for the State.

Horace C. Wilkinson, of Birmingham, opposed.

BROWN J.

The defendant was convicted of kidnapping, the offense denounced by section 3189 of the Code of 1923, which provides that "any person who focibly or unlawfully confines inveigles, or entices away another, with the intent to cause him to be secretly confined, or imprisoned against his will, or to be sent out of the state against his will, must, on conviction, be imprisoned in the penitentiary for not less than two nor more than ten years." (Italics supplied.)

In an opinion which evinces painstaking consideration, the Court of Appeals, construing the statute, has read into its first clause "and" for "or" so as to make it read "Any person who forcibly and unlawfully confines," etc. We are persuaded that this interpretation is unnecessary to characterize the acts prohibited as unlawful.

The dominating element of the offense of kidnapping, like the statutory felony of assault with intent to murder, is the intent with which the acts enumerated in the statute are done, to wit: "With the intent to cause him to be secretly confined or imprisoned against his will, or to be sent out of the state against his will," and the adverb "secretly" qualifies each of the verbs "confined" and "imprisoned," clearly indicating a legislative purpose to denounce as a felony any surreptitious restraint of one person by another in such sort as to deprive the subject of the crime "of the friendly assistance of the law to relieve himself from captivity." 1 Russ. Cr. 961; Smith v. State, 63 Wis. 453, 23 N.W. 879.

"Kidnapping at common law is defined to be the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another," and is treated as an aggravated species of false imprisonment.

4 Black. Com. 219; 1 East P. C. 430. To abduct is "to take away surreptitiously by force;" to steal is "to accomplish by stealth and concealment." Webster's New Int. Dict.

In Smith v. State, supra, the court of Wisconsin, construing a statute similar to ours, observed: "Can it be possible that the Legislature of this state intended to punish simple false imprisonment the same as this high crime of kidnapping? And yet it must be so, if the first clause of the section defines a distinct and complete offense, unqualified by the intent thereinafter mentioned, which would make the crime kidnapping. *** Secreting the prisoner, or carrying him out of the state, or in some way depriving him of the ordinary means of securing his liberty, or, as is said in Russell [1 Russell, 961], 'depriving him of the friendly assistance of the laws to redeem himself from such *** captivity,' are the ingredients of the offense. *** Without the aid of scarcely any decision of other courts upon the precise question here raised, but by what appears to be the most reasonable construction of the language, and by the analogies of the common law, and in consideration of the high grade and severe punishment of the crime of kidnapping, we conclude that the legislature intended that the intent mentioned in the section under consideration should qualify each preceding clause to which it can be made applicable, and that such intent must in all cases be *** proved in order to a conviction for the offense defined in said section." A like ruling, construing a similar statute, was made in People v. Camp, 66 Hun, 531, 21 N.Y.S. 741, and affirmed by the Court of Appeals 139 N.Y. 87, 34 N.E. 755.

If authority, other than the statute, is deemed necessary to sustain the proposition that the forcible and secret imprisonment of one person by another in such sort that the person so confined may not invoke the friendly assistance of the laws to relieve himself from such confinement, it may be found in the provisions of the Constitution "that no person shall be accused or arrested, or detained, except in cases ascertained by law, and according to the form which the same has prescribed; and no person shall be punished but by virtue of a law established and promulgated prior to the offense and legally applied." Constitution 1901, § 7.

The first count of the indictment under which the verdict of guilty was returned by the jury is in the form prescribed by section 4556 of the Code, form 68, and, under the repeated ruling of this court, it is sufficient, although it "omits to aver" in terms some of the material facts necessary to be proved to secure a conviction. Schwartz v. State, 37 Ala. 460; Smith v. State, 63 Ala. 55; Whitehead v. State, 16 Ala. App. 427, 78 So. 467; Leonard v. State, 96 Ala. 108, 11 So. 307; Walker v. State, 96 Ala. 53, 11 So. 401; Lang v. State, 97 Ala. 41, 12 So. 183; Reeves v. State, 95 Ala. 31, 11 So. 158; Huffman v. State, 89 Ala. 33, 8 So. 28; Bailey v. State, 99 Ala. 145, 13 So. 566; Coleman v. State, 150 Ala. 64, 43 So. 715.

The case of Bryan v. State, 45 Ala. 86, cited by the appellant, and followed by the Court of Appeals, declared a different rule; but that case was overruled by Weed v. State, 55 Ala. 13; this was pointed out by the Court of Appeals in Whitehead v. State, 16 Ala. App. 427, 78 So. 467.

The third count of the indictment condemned in Henry (a Slave) v. State, 33 Ala. 389, was not in the form prescribed by the statute.

The defendant filed a plea in abatement, which, omitting the formal parts, avers "that the indictment returned against him in this case should be abated because the grand jury that returned said indictment was not drawn and impaneled as required by law, but to the contrary was what is commonly called 'stacked,' that is to say, the cards containing the names of the jurors in attendance on court that week were not placed in a hat or box and the names indiscriminately drawn therefrom, but to the contrary the names of the jurors attending court that week from which the grand jury was drawn which returned this indictment were all stacked up in one stack and the first eighteen names on the stack were selected by the judge presiding as the grand jury impaneled which returned the indictment in this case."

The state's demurrer to this plea, assigning the following grounds: "(1) Because the plea is no answer to the indictment; (2) because the plea presents no valid objection to the said indictment; (3) because the plea does not aver that the grand jury was not drawn by officers required by law to draw same," was sustained.

In Oliveri v. State, 13 Ala. App. 348, 69 So. 359, it was ruled that the statute, Code 1923, § 9479, which provides that "no demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be taken or allowed which is not distinctly stated," was not applicable to criminal prosecutions, following in this respect the rule of James v. State, 53 Ala. 380, to the effect that, although the court might for that cause have refused to examine the pleas for defects therein, and have properly overruled the demurrer, yet, if the pleas are manifestly insufficient, and no answer to the indictment, and the court properly so decides, we will not reverse its judgment. This court seems to have entertained a different view in Turk v. State, 140 Ala. 112, 37 So. 234, and Coburn v. State, 151 Ala. 100, 44 So. 58, 15 Ann. Cas. 249.

But whether we apply the rule announced in the James Case, or the rule

of the later cases treating the facts averred in the plea as true, as we must do on demurrer (Spivey et al. v. State, 172 Ala. 391, 56 So. 232) we are of opinion that the court erred in sustaining the demurrer, and in this respect the Court of Appeals has ruled correctly.

The jury law as embodied in the Code, regulating the drawing and formation of juries, originated in the Act of the Legislature approved August 31, 1909, Acts 1909 (Sp. Sess.) pp. 305-320, sections 18 and 32 of the act being amended by act approved September 29, 1919, Acts 1919, pp. 1039-1042.

In Zininam v. State, 186 Ala. 9, 65 So. 56, in construing and applying these statutes in respect to the declaration of the Legislature that the provisions thereof "relating to the selection, drawing, summoning, or impaneling of jurors [are] directory merely," it was observed: "Nevertheless it is clear on inescapable grounds that some of the provisions of the Act in respect to the selection, drawing, summoning, and impaneling juries are mandatory. *** When the Legislature in this Act, along with its general prescription for interpretation, provided specific regulations which must have been deemed essential to the proper conduct of trials by jury, and which, if they are to have any operation at all, must be made effectual according to the specific language of the act, it so provided that either such specific regulations must be accepted by the courts as mandatory, or the statute as to them must be held to be insensible and of no effect." A like ruling was made in O'Byrnes v. State, 51 Ala. 25, as to a statute of similar import in respect to the formation of grand juries.

These statutes were subsequently carried forward into the present Code, c. 311, without change, and it must be presumed that the Legislature intended to adopt them with their previous interpretation. Barnewall v. Murrell, 108 Ala. 367 18 So. 831; Spooney v. State, 217 Ala. 219, 115 So....