State v. Murphy

• Decision Date: 15 December 1971
• Docket Number: No. 18,18
• Citation: 184 S.E.2d 845,280 N.C. 1
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Marcellus MURPHY.

Page 845

184 S.E.2d 845

280 N.C. 1

STATE of North Carolina v. Marcellus MURPHY.

No. 18.

Supreme Court of North Carolina.

Dec. 15, 1971.

Bethea, Robinson & Moore by Norwood E. Robinson, Reidsville, for defendant appellant.

Robert Morgan, Atty. Gen., William W. Melvin and T. Buie Costen, Asst. Attys. Gen., for the State of North Carolina.

HUSKINS, Justice:

Defendant's sole assignment of error is based on denial of his motion for judgment of nonsuit. He contends that the evidence, taken as true and considered in the light most favorable to the State, fails to make out a case of kidnapping. We now examine the validity of this contention.

G.S. § 14--39 provides in pertinent part: 'It shall be unlawful for any person * * * to kidnap * * * any human being. * * * Any person * * * violating * * * any provisions of this section shall be guilty of a felony, and upon conviction therefor, shall be punishable by imprisonment for life.' Since this statute does not define kidnapping, the common law definition of that crime is the law of this State. G.S. § 4--1. The common law definition of kidnapping is 'the unlawful taking and carrying away of a person by force and against his will.' State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965). Any carrying away is sufficient. 'The distance the victim is carried is immaterial.' State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v. Lowry, supra.

Under the pristine law of kidnapping, actual physical force was contemplated to accomplish the crime--fraud was not considered. However, in the last century this and other courts have progressively recognized that one's will may be coerced as effectually by fraud as by force. Accordingly, this Court has interpreted the common law definition of kidnapping to encompass not only the unlawful taking and carrying away of a person by force but also the unlawful taking and carrying away of a person by false and fraudulent representations amounting substantially to a coercion of the will. In State v. Harrison, 145 N.C. 408, 59 S.E. 867 (1907), the Court approved the trial judge's instruction that, 'By kidnapping is meant the taking and carrying away of a person, forcibly or fraudulently.' Thus fraud has become synonymous with force in the common law definition of kidnapping, and the equation of fraud with force has been accepted in the legal encyclopedias and approved in numerous jurisdictions. Kent v. Commonwealth, 165 Va 840, 183 S.E. 177 (1936); People v. Siegal, 362 Ill. 389, 200 N.E. 72 (1935); People v. DeLeon, 109 N.Y. 226, 16 N.E. 46 (1888); United States v. McGrady (C.A. 7, 1951), 191 F.2d 829, cert. den., Paulding v. United States, 342 U.S. 911, 72 S.Ct. 305, 96 L.Ed. 681 (1952); State v. Brown, 181 Kan. 375, 312 P.2d 832 (1957); Moody v. People, 20 Ill. 315 (1858); White v. State, 244 Ind. 199, 191 N.E.2d 486 (1963); Sutton v. State, 122 Ga. 158, 50 S.E. 60 (1905); State v. Walker, 139 Mont. 276, 362 P.2d 548 (1961); State v. Witherington, 226 N.C. 211, 37 S.E.2d 497 (1946). See 1 Am.Jur.2d, Abduction and Kidnapping, § 13; Annot., Kidnapping by fraud or false pretenses, 95 A.L.R.2d 450.

The principle involved in kidnapping by fraud is fully and clearly expressed in the following quotation from 24 Cyc., 798, 799, contained in State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962):

'To constitute the offense of kidnapping, it is not necessary that actual physical force or violence should have been employed, and this was true even at common law. It is essential only that the taking or detention should be against the will of the person kidnapped. Falsely exciting the fears of the person who is the subject of the offense by threats, or enticement or inveiglement by false and fraudulent representations amounting substantially to a coercion of the will is sufficient. In determining whether the person was coerced by fraud and inveiglement, the nature of the artifice employed and the age, education and condition of mind must be taken into consideration. The offense is not committed if the person taken away or detained, being capable in law of consenting, goes voluntarily without objection in the absence of fraud and deception, but a child of tender years is regarded as incapable of consenting.'

Gough stands for the proposition that where false and fraudulent representations amounting substantially to a coercion of the will of the victim are used in lieu of force in effecting kidnapping, there is in law no consent at all on the part of the victim. Under those circumstances the law considers fraud the equivalent of force.

In the present case no actual force was used by defendant. Steve Turner voluntarily accompanied him, ostensibly for a lawful and innocent purpose--to go look at some squirrels. But the State's evidence permits, almost compels, these legitimate inferences: (1) When defendant and Steve left Morehead High School and crossed the parking lot, Steve intended to cross the street and go to the basketball court at the James E. Holmes School; (2) meanwhile, defendant had decided to make the sadistic attack upon Steve and suggested looking at squirrels to entice Steve into the woods; (3) there were no squirrels in the woods; (4) Steve would not have gone into the woods at all except for defendant's false representations that squirrels were there and his deceptive, fraudulent conduct in 'looking in the air like he was seeing some squirrels' and acting 'like he was seeing them jumping from tree to tree'; (5) defendant's representations concerning squirrels were untrue and defendant knew they were untrue when he made them; (6) such false representations were reasonably calculated to deceive Steve Turner, considering his age and education and the nature of the representations (what thirteen-year-old boy does not possess a tremendous interest in small wild creatures?); (7) defendant made these false representations with intent to deceive Steve and thereby inveigle him into the woods so he could commit the assault upon him; (8) defendant did in fact deceive Steve and cause him to leave the parking lot and go into the woods where the sadistic assault took place; and (9) Steve's apparent consent to journey into the woods, having been obtained by the fraud of the defendant, was in truth no consent at all but simply the fruit of defendant's fraud amounting substantially to a coercion of the victim's will.

On motion for nonsuit the evidence must be considered in the light most favorable to the State, and the State must be given the benefit of every reasonable intendment thereon and every reasonable inference to be drawn therefrom. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Only the evidence favorable to the State is considered, State v. Gay, 251 N.C. 78, 110 S.E.2d 458 (1959), and contradictions and discrepancies, even in the State's evidence, are matters for the jury and do not warrant nonsuit. State v. Mabry, 269 N.C. 293, 152 S.E.2d 112 (1967). When the evidence in this case is so considered, giving the State the benefit of every reasonable inference to be drawn therefrom, it was sufficient to carry the case to the jury on the kidnapping charge contained in the bill of indictment. Defendant's motion for judgment of nonsuit at the close of all the evidence was properly denied.

The charge is not included in the case on appeal. 'It is, therefore, presumed to be free from error and that the jury was properly instructed as to the law arising upon the evidence as required by G.S. 1--180.' State v. Staten, 271 N.C. 600, 157 S.E.2d 225 (1967).

The verdict and judgment of the court below will be upheld.

Affirmed.

BOBBITT, Chief Justice (dissenting).

The gruesome manner in which defendant assaulted, tortured and seriously injured Steve Turner is graphicly described in the portion of Steve's testimony quoted in the Court's opinion. For this unprovoked and brutal attack defendant was indicted and convicted of felonious assault and sentenced to the maximum term of ten years. He does not appeal from his conviction and sentence for felonious assault.

Defendant was also tried and convicted of kidnapping and sentenced to serve 28 years, the sentences to run concurrently. His appeal is from this conviction and sentence; and the sole question is whether the evidence is sufficient to warrant submission of the kidnapping case to the jury.

The indictment for kidnapping charges that defendant 'unlawfully, wilfully, feloniously, without lawful authority, by the means of trickery, artifice and fraud, and by physical force did kidnap and carry away one Steve Turner, against the will of the said Steve Turner,' etc.

There was no evidence of the actual or threatened use of physical force prior to defendant's surprise assault on Steve.

Our statute, G.S. § 14--39, does not define Kidnapping but prescribed the punishment therefor. Kidnapping, as used in G.S. § 14--39, is generally defined in our decisions as the unlawful taking and carrying away of a human being against his will by force or fraud. State v. Ingland, 278 N.C. 42, 50, 178 S.E.2d 577, 582 (1971), and cases there cited. As interpreted in our decisions, this statute leaves the term of imprisonment for kidnapping in the discretion of the court, imprisonment for life being the maximum punishment. State v. Kelly, 206 N.C. 660, 663, 175 S.E. 294, 296 (1934); State v. Barbour, 278 N.C. 449, 457--458, 180 S.E.2d 115, 120--121 (1971).

G.S. § 14--39 draws no distinction in respect of the permissible punishment for kidnapping on account of such factors as (1) the duration of the victim's unlawful detention, (2) the distance the victim is unlawfully taken and carried away, (3) whether the victim's life is endangered or threatened while unlawfully taken, carried away or detained, and (4) whether the victim is physically or otherwise injured prior to release, escape or rescue.

Implicit in our general definition of kidnapping are...