State v. Clark
| Decision Date | 10 January 1969 |
| Docket Number | No. 173,173 |
| Citation | 80 N.M. 91,451 P.2d 995,1969 NMCA 4 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Elsie CLARK, Jr., Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted of kidnaping, defendant appeals. The issues are: (1) The intent required under our kidnaping statute, (2) sufficiency of the evidence, (3) identification of defendant and (4) inquiry into a prior conviction.
(1) The intent required under our kidnaping statute.
Section 40A--4--1, N.M.S.A.1953 (repl. vol. 6, 1964) states in part:
'Kidnaping is the unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim be held for ransom, as a hostage, confined against his will, or to be held to service against the victim's will.' (Emphasis added)
Defendant contends that the intent clause, italicized above, is ambiguous. Because of this asserted ambiguity, he contends that we should interpret it as providing for proof of only two separate intents. One is proof that the intent was to hold the victim '* * * to service against the victim's will.' The other is to combine the intent items that precede the 'or' into one intent item. Under this view proof would be required of intent to hold the victim for ranson and hold the victim as a hostage and confine the victim against his will.
Defendant asserts that his position is supported by comparing the kidnaping statute with the false imprisonment statute, § 40A--4--3, N.M.S.A.1953 (repl. vol. 6, 1964), the material part of which reads:
'False imprisonment consists of intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.'
One of the items set forth in the intent clause of the kidnaping statute is an intent that the victim be '* * * confined against his will, * * *'. If this is a sufficient intent under the kidnaping statute, defendant asserts it is very similar to the requisite intent for false imprisonment--an intent to confine or restrain another person without his consent. Because of this similarity, defendant argues that the District Attorney, in his discretion, could prosecute a person either for kidnaping (at least, a second degree felony) or false imprisonment (a fourth degree felony). It is defendant's position that such discretion in the District Attorney amounts to an unconstitutional denial of equal protection under State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966).
Defendant asserts that the Legislature did not intend that an intent to confine a person against his will would meet the requirements of the kidnaping statute; rather, that the Legislature intended that effect be given to both the kidnaping and false imprisonment statutes. See Waltom v. City of Portales, 42 N.M. 433, 81 P.2d 58 (1938). Accordingly, defendant asserts that his interpretation of the intent clause of the kidnaping statute expresses the legislative intent.
These contentions overlook an obvious distinction between kidnaping and false imprisonment. Under both the kidnaping statute, § 40A--4--1, supra, and the false imprisonment statute, § 40A--4--3, supra, there may be an intent to confine. However, under the kidnaping statute there must be force or deception. There is no such requirement in the false imprisonment statute. A comparison of the two statutes does not demonstrate that the Legislature enacted the theory urged by defendant.
It is the state's position that an intent to confine a person against his will is sufficient intent under the kidnaping statute. At oral argument it was suggested that such a position is absurd because it could result in a conviction for kidnaping under the following parts of the kidnaping statute:
'Kidnaping is the unlawful * * * confining of a person, by force or deception, with intent that the victim be * * * confined against his will, * * *'
The suggested absurdity is based on the double use of 'confinement'. We fail to see the suggested absurdity. There may be an unlawful confinement, and independently thereof, there may be an intent to confine against one's will. A similar double use appears in one of our earlier kidnaping statutes. Laws 1913, ch. 41, § 2, now repealed. Further, the Report of Criminal Law Study Interim Committee, 1961--62, at § 4--1, recommended enactment of a new kidnaping statute. The recommended statute included an unlawful confining but omitted intent to confine against a person's will. The 'intent to confine' portion was added by the Legislature in enacting the present statute, § 40A--4--1, supra. The double use of 'confinement' in the kidnaping statute fails to demonstrate that in enacting the statute, the Legislature intended the theory urged by defendant.
Defendant advances other arguments in support of his theory; these arguments are based on selected rules of statutory construction. But, where the meaning of the statute is plain, there is no room for construction. State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967).
The meaning of the intent clause is plain. There are a series of intent elements; four coordinate intent elements are stated in succession. These four elements are: intent to hold the victim for ransom or intent to hold the victim as a hostage or intent to confine the victim against his will or intent to hold the victim '* * * to service * * *' against the will of the victim. Proof of any one of these four is sufficient proof of intent under § 40A--4--1, supra.
(2) Sufficiency of the evidence.
About 3:30 A.M., the victim went to the emergency room of a Roswell hospital for treatment. As she opened the door to the emergency room, a male pushed her against the wall, put a knife to her neck and warned her not to scream. After remaining in this position for several seconds, the victim was pushed to the south wall of the covered ambulance entrance; a distance of eight to ten feet. After remaining there about fifteen minutes, the victim was directed to a car parked in front of the hospital and told to get in it. After walking four or five steps in the direction of the car, the victim dropped her sandal. The assailant then released his grip and the victim escaped. The criminal information charged that defendant '* * * did unlawfully take, restrain or confine * * * (the victim) by force with intent that she be held as a hostage or confined against her will * * *.' The jury was instructed on the basis of this charge.
Defendant contends there is an absence of evidence to show intent under § 40A--4--1, supra. This contention, however, is based on defendant's interpretation of the intent clause, which was answered in point one of this opinion. From the above evidence, the jury could determine that the assailant intended to confine the victim against her will.
Defendant also asserts that the evidence fails '* * * to establish the confinement or taking necessary to constitute a violation * * *.' of § 40A--4--1, supra. This refers to the requirement that the defendant must unlawfully take, restrain or confine the person. The uncontradicted evidence shows that the victim was held at the point of a knife for a few seconds then taken eight to ten feet away where she was restrained or confined for approximately fifteen minutes.
Defendant contends that this conduct occurred as a '* * * mere incident to other criminal activity * * *'. He argues the severity of the kidnaping statute should not be applied to conduct which may be a constituent element of a less serious crime. If defendant committed other crimes in the process of violating our kidnaping statute, this does not immunize him from prosecution under our kidnaping statute. Compare State v. Garcia, 78 N.M. 136, 429 P.2d 334 (1967).
Defendant asserts that the Legislature only intended the statute to apply to the 'true' kidnap. As written, our statute is not limited to a situation where a person is held for ransom; if indeed, that is the 'true' kidnap. The statute is to be given effect as written. Gonzales v. Oil, Chemical and Atomic Workers Int. U., 77 N.M. 61, 419 P.2d 257 (1966).
Defendant also asserts that his conduct is not the type of conduct proscribed by § 40A--4--1, supra. Our statute does not qualify the type of conduct proscribed by requiring the victim to be confined for a certain length of time or be taken a specified minimum distance. If there is an unlawful restraining or confining, the length of time involved in such restraint or confinement is...
To continue reading
Request your trial
-
State v. Trujillo
...is immaterial. If there is an unlawful taking, the distance the victim is taken is not material.” State v. Clark (Clark I), 80 N.M. 91, 94, 451 P.2d 995, 998 (Ct.App.1969) (citations omitted), rev'd on other grounds by 80 N.M. 340, 455 P.2d 844 (1969) ( Clark II ). This broad wording has re......
-
State v. Cawley
...to proceed beyond the fact of conviction and name of the offense into the details underlying that conviction. See State v. Clark, 80 N.M. 91, 451 P.2d 995 (Ct.App.), reversed on other grounds, 80 N.M. 340, 455 P.2d 844 (1969). However, because defendant denied being in the Hobbs bookstore o......
-
State v. Carlton
...or misdemeanor, * * *' It is held that the cross-examination may not go beyond the name of the particular offence. State v. Clark, 80 N.M. 91, 451 P.2d 995 (Ct.App.1969); State v. Coca, 80 N.M. 95, 451 P.2d 999 The question was clearly proper under the language of § 20--2--3, supra. Argumen......
-
State v. Torres
...defendant. At trial both Joe and Patsy testified concerning their identification of defendant at the line-up. Compare State v. Clark, 80 N.M. 91, 451 P.2d 995 (Ct.App.1969), reversed on other grounds, 80 N.M. 340, 455 P.2d 844 (1969); State v. Carrothers, 79 N.M. 347, 443 P.2d 517 (Ct.App. ......