State v. Dove
| Decision Date | 06 January 1955 |
| Docket Number | No. 9423,9423 |
| Citation | 67 N.W.2d 917,75 S.D. 460 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Hugo Arthur DOVE, also known as Arthur H. Stone, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
O. E. Beardsley and W. A. Hackett, Watertown, for appellant.
Ross H. Oviatt, State's Atty., Watertown, Ralph A. Dunham, Atty. Gen., and E. D. Barron, Asst. Atty. Gen., for State of South Dakota, respondent.
Appellant is under sentence of death on conviction of the crime of first degree kidnaping. The statute under which he was tried provides a minimum penalty of hard labor in the state penitentiary for life and a maximum penalty of death. On the recommendation of the jury as to which penalty should be imposed, as required by the statute, the trial judge imposed the death sentence on the jury's verdict of guilty.
The conviction grew out of an outrageous sexual attack by defendant on a nine year old girl. The 'kidnaping' and 'holding' were incident only to this attack and consisted of appellant's acts in luring the child from a city street to a secluded alley and there to forcibly gratify his sexual desires against the will of the thoroughly frightened and wholly overpowered and unwilling little girl. Immediately after the sexual attack she was released. It appears she was subjected to no more physical injury than appellant deemed necessary to quiet her and hold her while he carried out his evil plan, plus, of course, the physical injury, not aggravated, that resulted directly from his acts. Commission of the offense involved a degree of choking. As the child was released appellant threatened to kill her if she told what he had done. She found her parents without delay, made a disclosure of the occurrence, and appellant, a transient, was apprehended that same evening. Appellant has a bad record of prior offenses, two at least of which were sex crimes.
The kidnaping statutes, SDC Supp. 13.2701 and 13.2701-1, provide:
'13.2701 Kidnapping: defined; kidnapping in the first degree; penalty. Whoever shall knowingly and unlawfully seize, confine, inveigle, decoy, kidnap, abduct, or carry away by any means whatsoever any person except as provided for in section 13.2701-1 hereof and shall be guilty of kidnapping in the second degree and who shall also ravish, or assault, or mutilate, or choke, or strangle or do other bodily harm or injury to the person so kidnapped as defined herein in such a manner and under such circumstances abhorrent to the public morals and common decency shall be guilty of kidnapping in the first degree and upon conviction shall be sentenced to death or to hard labor in the State Penitentiary for life. Upon the trial of an indictment or information for kidnapping in the first degree there shall be submitted to the jury in addition to the customary form of verdict upon the question of the guilt of the defendant or defendants, a supplementary form of verdict in the following language: 'We, the jury, duly impaneled in the above entitled cause have by our verdict found the defendant guilty do recommend that he be sentenced to ......' Such supplementary form shall be submitted to the jury with reference to each defendant if there be more than one. If the jury find any defendant or defendants guilty they shall return into court as to each of said defendant a supplementary verdict in the form above designated, filling in the blank in the end thereof by the word 'death' or by the words 'life imprisonment' as the jury may see fit, such supplementary verdict or verdicts to be signed and returned in the usual manner. Judgment of death shall not be pronounced by the court upon any defendant in case of trial and conviction unless the jury so recommending and notwithstanding such recommendation by the jury the court may nevertheless pronounce judgment of life imprisonment. Upon a plea of guilty the court shall determine whether the punishment shall be death or life imprisonment and shall pronounce judgment accordingly.
Appellant attacks, the constitutionality of the first degree statute, SDC Supp. 13.2701, under which he was convicted.
This court has upheld the validity of SDC Supp. 13.2701-1. In State v. Strauser, S.D., 63 N.W.2d 345, we affirmed a judgment imposing a life sentence for second degree kidnaping. SDC Supp. 13.2701 attempts to create a first degree of kidnaping by upgrading the second degree. This is done by providing in effect that first degree kidnaping is committed when any person who has committed second degree kidnaping shall also 'ravish, or assault, or mutilate, or choke, or strangle or do other bodily harm or injury to the person so kidnapped as defined herein in such a manner and under such circumstances abhorrent to the public morals and common decency.'
The penalty for second degree kidnaping may be a prison term as short as five years or as long as life. For first degree the penalty is either a prison term for life, or death.
Courts should liberally construe the language used by the legislature in a criminal statute in an effort to carry out the legislative intention. The language used, however, must make reasonably certain what conduct is prohibited. Otherwise the statute is void. 22 C.J.S., Criminal Law, Sec. 24. The rule is of special and obvious importance when the punishment involved is death. As Mr. Justice Rutledge said in his dissent in Robinson v. United...
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State of Minn. ex rel. Hove v. Doese
...97, 101-02, 7 S.Ct. 469, 471, 30 L.Ed. 588, 590 (1887); accord State v. Piekkola, 90 S.D. 335, 241 N.W.2d 563 (1976); State v. Dove, 75 S.D. 460, 67 N.W.2d 917 (1955) (a conviction under an unconstitutional statute is a nullity). Unconstitutional legislation is void and is to be treated as ......
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