State v. Dix

• Decision Date: 26 January 1973
• Docket Number: No. 19,19
• Citation: 193 S.E.2d 897,282 N.C. 490
• Parties: STATE of North Carolina v. Billy C. DIX.
• Court: North Carolina Supreme Court

Page 897

193 S.E.2d 897

282 N.C. 490

STATE of North Carolina v. Billy C. DIX.

No. 19.

Supreme Court of North Carolina.

Jan. 26, 1973.

Atty. Gen. Robert Morgan, Asst. Atty. Gen. Howard P. Satisky, for the State.

Gwyn, Gwyn & Morgan, by Melzer A. Morgan, Reidsville, for defendant appellant.

SHARP, Justice:

The determinative question is the sufficiency of the evidence to withstand defendant's motion for nonsuit. The facts material to decision are not controverted.

On 18 April 1970 defendant (aged 23) was incarcerated in the State's prison camp at McLeansville in Guilford County. There, four days earlier, he had begun serving sentences totaling four years which had been imposed by the Superior Court of Rockingham County the preceding week. About noon, on 18 April 1970, defendant and three other prisoners escaped.

Before defendant was removed from the Rockingham County jail in Wentworth he had promised his 'buddy,' Bobby Brown, that he would come back and get him. About 1:30 a.m. on 19 April 1970 defendant knocked on the front door of the Wentworth jail, and H. C. Crowder, the assistant jailer on duty, opened the door. Defendant 'threw a gun' in his face, ordered him to turn around with his hands up, and said, 'You got three of my buddies and I will kill you if I don't get them.' With a 25-caliber automatic 'stuck in (Crowder's) back,' defendant marched him from the jail vestibule through the office and into a hall from which two steps gave access to the lower cell blocks. Keeping the gun at the back of Crowder's head, and repeating his threats to kill him, defendant compelled Crowder to open the cell-block door. After Bobby Brown and two other prisoners came out, defendant forced Crowder into the cell. From the front door to the cell defendant had forced Crowder to walk a distance of 62 feet.

Crowder testified that after he entered the cell defendant made about three paces backward and then advanced on him saying, 'Damn you, I will kill you'; that he then held the gun up to Crowder's head and snapped it; that the gun did not go off and defendant backed out. After locking the cell block defendant and his three companions fled. Nine minutes later Crowder was released by a trusty, who heard his cries for help.

In brief summary, defendant's testimony tended to show: He broke into the jail with 'full intention of committing the crime of aiding and abetting and helping the prisoners to escape,' but with no intention of kidnapping Mr. Crowder. He never threatened Crowder in any way. His only purpose in 'putting the gun on him' was to scare him, but he told him he was not going to do anything to him but lock him in the cell. He left the keys to the cell block on the desk in the office. In defendant's opinion the distance from the front door to the cell was only 50 feet. He was captured in the State of Virginia about sundown that same day.

Kidnapping, which was a misdemeanor at common law, in this State is one of the most serious of crimes. By statute it is made a felony punishable by imprisonment for a term of years or for life in the discretion of the court. G.S. § 14--39 (1969); State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966); State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, appeal dismissed sub nom., 382 U.S. 22, 86 S.Ct. 227, 15 L.Ed.2d 16 (1965); State v. Kelly, 206 N.C. 660, 175 S.E. 294 (1934). North Carolina, however, is one of the few states which has not, by statute, redefined kidnapping and its associated common law offense, false imprisonment. See Note, 110 U.Pa.L.Rev. 293 (1961). 'Thus the common law with respect to kidnapping and false imprisonment is the law of this State.' State v. Ingland, 278 N.C. 42, 50, 178 S.E.2d 577, 582 (1971). See generally 2 Burdick, Law of Crime §§ 387--389 (1946), Perkins, Criminal Law 129--136 (1957).

In our decisions, Kidnapping is defined generally as the unlawful taking and carrying away of a human being against his will by force, threats, or fraud. State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1871); State v. Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971) cert. denied, 404 U.S. 1023, 92 S.Ct. 699, 30 L.Ed.2d 673 (1972); State v. Ingland, Supra; State v. Bruce, Supra; State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962). False imprisonment is the illegal restraint of a person against his will. State v. Lunsford, 81 N.C. 528 (1879). 'Our decisions hold that the unlawful detention of a human being against his will is false imprisonment, not kidnapping.' State v. Ingland, Supra at 51 178 S.E.2d at 582. The element of carrying away is the differentiating factor between the two offenses.

Blackstone and some other English authorities defined kidnapping as the 'forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another.' 4 Blackstone, Commentaries * 219. Thus, originally, a very substantial asportation was contemplated. It soon became apparent, however, 'that distance and isolation could be achieved in the realm, and that even distance was not essential to isolating a victim from the law and his friends, E.g., by 'secret' confinement in the immediate vicinity.' Model Penal Code § 212.1, Comment (Tent. Draft No. 11, 1960). In this country it was early held that the transportation to a foreign country was not a necessary part of this offense. 1 Am.Jur.2d Abduction and Kidnapping § 1 (1962).

Bishop's definition of kidnapping, 'false imprisonment aggravated by conveying the imprisoned person to some other place,' 2 Bishop, Criminal Law § 750 (9th ed. 1923), has often been quoted with approval by this Court. See State v. Ingland, Supra at 51, 178 S.E.2d at 583; State v. Lowry, Supra at 540, 139 S.E.2d at 874; State v. Gough, Supra at 352, 126 S.E.2d at 121; State v. Harrison, 145 N.C. 408, 417, 59 S.E. 867, 870--871 (1907). Every decision of this Court on the subject recognizes that, in addition to unlawful restraint, the taking, carrying away, transportation, or asportation of the victim from the place where he is seized to some other place is an essential element of common law kidnapping. Also see Midgett v. State, 216 Md. 26, 39--40, 139 A.2d 209, 216 (1958). An unlawful detention for the purpose of carrying the victim away will not constitute kidnapping until the asportation has in fact been accomplished. State v. Ingland, Supra.

The specific question presented by this appeal is whether Crowder was 'carried away' or 'conveyed to some other place' as these terms are used with reference to asportation as an element of kidnapping.

This Court has heretofore decided no case in which a defendant has asported an unlawfully restrained person from one part of the building in which he was seized to another, or from one room to another; nor has it ever attempted 'to calculate the requisite asportation in terms of linear measurement' or to delimit the word 'place.' See People v. Adams, 34 Mich.App. 546, 568, 192 N.W.2d 19, 30 (1971). However, in State v. Lowry, Supra, there appears a dictum bearing upon these matters, which we have repeated so often that decision in this case requires its examination.

In State v. Lowry, Supra, defendants forcibly took a husband and wife from their automobile on a public street in Monroe and marched them at gun-point 100 yards to the home of R. Williams, where they were held as hostages for 3--4 hours. In disposing of the defendant's contention that G.S. § 14--39 was unconstitutionally vague and overbroad, Justice Clifton L. Moore, writing the opinion for the Court, after stating the common law definition of kidnapping, added the following comment and cited the following authorities to support it:

'It is the fact, not the distance of forcible removal of the victim that constitutes kidnapping. 1 Am.Jur.2d, Abduction and Kidnapping, s. 18, p. 172; People v. Oganesoff, 81 Cal.App.2d 709, 184 P.2d 953 ((1947)); 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 ((1958)).' Id. at 541, 139 S.E.2d at 874. The quoted sentence preceding the citations is the 'Chessman-Wein apothegm,' a phrase which was coined by the California Supreme Court in People v. Daniels, 71 Cal.2d 1119, 1129, 80 Cal.Rptr. 897, 903, 459 P.2d 225, 231 (1969) to designate the rule laid down in People v. Chessman, 38 Cal.2d 166, 192, 238 P.2d 1001, 1017 (1951) and People v. Wein, Supra at 399--400, 326 P.2d at 466. This rule--first laid down by the California court in Chessman and reaffirmed in Wein--recites, 'It is the fact, not the distance, of forcible removal which constitutes kidnapping in this state.'

The Chessman-Wein apothegm is part of the first sentence in 1 Am.Jur.2d Abduction and Kidnapping § 18, at 172 (1962) cited in the preceding quotation from Lowry. The entire first sentence of Section 18 reads as follows: 'Under most statutes it is the fact, not the distance, of forcible removal of the victim that constitutes kidnapping, and there are numerous states under whose legislation interstate transportation of the victims is not necessary.' (Emphasis added.) Clearly, the quoted statement has no application to common law kidnapping; nor do the two California cases cited, Oganesoff and Wein, support the proposition for which they were cited in Lowry.

In Oganesoff, the asportation was substantial and fulfilled common law requirements. The defendant enticed his victim into his automobile by falsely promising to take her home. Instead he drove her to his house, a considerable distance away. When she attempted to escape he beat and kicked her and forced her into his house at knife point. In some manner she escaped into a cornfield. However, he found her, forcibly returned her to the house, and raped her. The Chessman-Wein apothegm thus had no more application to the facts in Oganesoff than it did to those of Lowry, since the victims in both were transported over a substantial distance from one place to another...