State v. Gibbs

• Decision Date: 31 May 1963
• Docket Number: No. A--1124,A--1124
• Citation: 79 N.J.Super. 315,191 A.2d 495
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Howard GIBBS, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 315

79 N.J.Super. 315

191 A.2d 495

STATE of New Jersey, Plaintiff-Respondent, v. Howard GIBBS, Defendant-Appellant.

No. A--1124.

Superior Court of New Jersey Appellate Division.

Argued May 27, 1963.

Decided May 31, 1963.

William E. Reifsteck, Camden, assigned counsel, for appellant.

Stephen M. Gretzkowski, Jr., Asst. Pros., for respondent (Norman Heine, Camden County Pros., attorney, Stephen M. Gretzkowski, Jr., on the brief).

Before Judges GOLDMANN, FREUND and FOLEY.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

The Camden County grand jury returned three indictments against defendant, respectively charging him with (1) assault with intent to commit rape (N.J.S. 2A:90--2), N.J.S.A.; (2) kidnaping (N.J.S. 2A:118--1), N.J.S.A. and (3) armed robbery (N.J.S. 2A:141--1 and 2A:151--5), N.J.S.A. He pleaded not guilty. The jury returned a verdict of guilty on all three charges. The County Court judge imposed the following State Prison sentences: (1) 10--12 years on the assault with intent to rape charge, to run consecutive to a State Prison sentence then being served for armed robbery; (2) 30--35 years for the crime of kidnaping, to run consecutive to the assault with intent to rape sentence, and (3) 12--15 years for robbery, and an additional 3--5 years for being armed, these sentences to run consecutive to the kidnaping sentence.

Defendant appeals his convictions. Assigned counsel on appeal is the same attorney who represented him at the trial.

I

Preliminarily, we dispose of defendant's claim, made in a letter to counsel, that the appeal brief is 'conspicuously weak and insufficient' because it did not present 'the circumstances and development of the alleged crimes and my arrest' or 'the facts of the contradiction in the testimony of the alleged offended party under oath.' He also complains of counsel's failure to include in the typed appendix any portion of the transcript of the trial. We have been provided with and have carefully read the full transcript, and have assessed the points raised on appeal in the light of the trial record. We find that assigned counsel has presented every argument which might properly be raised. He has ably discharged his responsibility, both in this court and on the trial level. Defendant's complaint about the quality of his legal representation is without foundation.

II

In the early evening of January 27, 1960, one B and his bride-to-be, Miss G, were sitting in B's automobile in the Evans Lake parking area, Haddonfield, N.J. Shortly after 8 P.M. defendant, then going on 20, accompanied by three male juveniles, drove up to the area in a stolen Oldsmobile car. The four had been drinking wine. Defendant first tried to push the parked car into the water, but was unsuccessful. He then jumped out of the Oldsmobile, ran up to the parked car, knocked with a gun against the window where Miss G was sitting, and told the two to get out of the car or he would shoot. In fear, they complied with the order. Meanwhile, another of the quartet left the Oldsmobile and stood some three or four feet in front of B's car. Defendant told the couple that all he wanted was their money and the keys to the car, and that nothing would happen to them. He took Miss G's pocketbook and B's wallet and keys, returned to the Oldsmobile, but then came back and told the girl they were going to take her with them and leave her at the bridge close by. When Miss G resisted, defendant grabbed her arm, pulled her toward the Oldsmobile and pushed her into the front seat. He then drove the Oldsmobile toward the bridge, but did not stop there, continuing for some distance to an isolated place in a neighboring township, where he stopped. Gun in hand, he ordered the girl to take off her clothes. When she refused, defendant, assisted by one of the juveniles, stripped her, leaving her standing in her sneakers. He ordered the two boys in the back seat of the Oldsmobile to get out and forced the girl to get in, accomplishing his purpose by striking her on the neck and on the jaw. He then attempted to have sexual relations with her, assisted by one of his three companions. Miss G's struggles were evidenced by the bruises and scratches on her body. She could not recall whether he penetrated her, and this would explain the fact that the State charged defendant with only an attempt to commit rape. One of the boys who had been sitting in the front seat also attempted sexual relations, but apparently failed of his purpose. Defendant then handed the young lady her pocketbook and some of her clothing and ordered her to run into the field, saying 'better not turn around or we will shoot you.' She ran off naked, and the four men drove away. Miss G eventually got to a highway where she was picked up by people in a passing car, who took her to the police.

The three younger members of the quartet were dealt with as juveniles; defendant stood trial. B and Miss G positively identified him as the driver of the Oldsmobile and the man who held the gun, robbed them, kidnaped the girl and attempted to rape her. The three juveniles denied that defendant was their companion on the night in question, and said they did not know the name of the man who was with them. However, defendant had given the police a statement, admitted in evidence, which substantially connected him with the crime and was completely inconsistent with his testimony at the trial.

Since defendant, in his letter to assigned counsel, indicates that the trial record would support his claim of innocence, we have given particular attention to the transcript of the testimony, the summations and the charge to the jury. We conclude that the trial was entirely fair and that guilt was proved beyond a reasonable doubt.

III

The kidnaping indictment charged, in the words of the statute, that defendant on January 27, 1960, in Haddonfield, Camden County, 'unlawfully and feloniously did kidnap, steal and forcibly take away' Miss G from Haddonfield and 'unlawfully and feloniously did carry (her) to another point in the State,' namely Delaware Township, in Camden County, contrary to N.J.S. 2A:118--1, N.J.S.A. At the close of the trial the prosecution moved that the indictment be amended to read that defendant 'unlawfully and feloniously did forcibly take away' Miss G from Haddonfield, etc. There was no objection to striking the words 'kidnap, steal and' from the indictment.

Initially, defendant contends that the coexistence of N.J.S. 2A:86--1 and 2, N.J.S.A., relating to abduction, and N.J.S. 2A:118--1, N.J.S.A., the kidnaping statute, violates the Fourteenth Amendment to the Federal Constitution in that it denies those coming within their provisions the equal protection of the law. The argument is that 'Different persons are subjected to different degrees of punishment for the same alleged conduct, based upon the statute under which the state proceeds. The determination of punishment, to a great extent, is established by the whim of the prosecutor and grand jury upon indictment rather than by the court upon conviction.'

Although a defendant could, in certain circumstances, be charged with and found guilty of violating either statute, it is equally true that many sets of circumstances might establish guilt of the violation of N.J.S. 2A:118--1, N.J.S.A. (kidnaping) and not N.J.S. 2A:86--1 and 2, N.J.S.A. (abduction). N.J.S. 2A:86--1 and 2, N.J.S.A. deal, essentially, with abduction and marriage (or defilement) of a female; N.J.S. 2A:118--1, N.J.S.A. clearly and singularly deals with kidnaping a man, woman or child. The argument defendant makes was fully discussed and resolved in State v. Johnson, 67 N.J.Super. 414, 418, 170 A.2d 830 et seq. (App.Div.1961). We consider that decision definitive and controlling. Defendant was properly charged and convicted of violating the kidnaping statute.

Defendant next attacks that part of the kidnaping statute under which he was indicted as constitutionally void by reason of vagueness. The argument here is that the statutory language is so general that it may be construed to embrace not only acts commonly recognized as reprehensible but also others which it would be unreasonable to presume were intended to be made criminal. It is said that a serious question might be raised whether the statute is not applicable to a situation where a policeman forcibly takes a felon from the scene of the crime to the police station, or a person involved in an automobile accident to a doctor's office for examination to determine whether he was driving while under the influence of intoxicating liquor; or in some instances where one parent takes his child from the custody of the other parent; or where a staff member of a state institution transports a patient or inmate to another institution. Defendant states he has found no reported case in support of this contention.

4 Blackstone, Commentaries, c. 15, § 9, p. 219 defined kidnaping as 'the forcible abduction or stealing away of a man, woman or child, from their own country, and sending them into another.' In the act of March 18, 1796, 'An Act for the punishment of crimes,' kidnaping was defined in section 54:

'That if any person shall kidnap, or steal, or forcibly take away any man, woman or child, bond or free, and send or carry, or with intent to send or carry such man, woman or child from this State into another State or country * * * then the person so offending * * * shall be adjudged to be guilty of a high misdemeanor.'

The crime was punishable by a fine of $1,000 or imprisonment for five years, or both. Paterson, Laws of New Jersey, p. 218 (1800). The statutory language 'kidnap, or steal, or forcibly take...