State v. Olsen

• Decision Date: 26 June 1930
• Docket Number: 5006
• Citation: 289 P. 92,76 Utah 181
• Court: Utah Supreme Court
• Parties: STATE v. OLSEN

289 P. 92

76 Utah 181

STATE v. OLSEN

No. 5006

Supreme Court of Utah

June 26, 1930

Appeal from District Court, Second District, Weber County; E. E Pratt, Judge.

Murret Olsen was convicted of kidnapping, and he appeals.

REVERSED AND REMANDED, with directions.

P. E Norseth and Geo. H. Lowe, both of Ogden, for appellant.

Geo. P Parker, Attorney General, and L. A. Miner, Deputy Attorney General, for the State.

ELIAS HANSEN, J. CHERRY, C. J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.

OPINION

ELIAS HANSEN, J.

The defendant was found guilty of the crime of kidnapping and sentenced to serve an indeterminate term in the state prison. He appeals. By his assignments of error he assails the sufficiency of the information and of the evidence to sustain a conviction of the crime of kidnapping. The charging part of the information reads thus:

"The said defendant, on January 29th, 1929, at the County of Weber, State of Utah, wilfully, unlawfully and feloniously, without lawful authority, seized, confined, inveigled and kidnapped one Leah Schofield, with intent to cause the said Leah Schofield to be kept and detained against her will."

The provisions of our Penal Code which the state claims the defendant violated is subdivision 1 of section 8040, Comp. Laws Utah 1917, which reads as follows:

"Every person who wilfully:

"1. Seizes, confines, inveigles, or kidnaps another with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or in any way held to service or kept or detained against his will; * * * is guilty of kidnapping. * * *"

The defendant contends that to unlawfully seize, confine, or inveigle a person with intent to cause such person to be kept or detained against his will does not constitute the crime of kidnapping in the absence of an intent that such person shall be "secretly" kept or detained. The case of People v. Camp, 139 N.Y. 87, 34 N.E. 755, is cited in support of such contention. The state contends that the information and the evidence in this case supports the conviction of the defendant of the crime of kidnapping and that it is not necessary to allege or prove that the act of seizing, confining, or inveigling was committed with the intent that such person be "secretly" kept or detained. The case of Ex parte McDonald, 50 Mont. 348, 146 P. 942, is cited by the state in support of its contention. The case of People v. Camp, supra, supports defendant's contention, and the case of Ex parte McDonald, supra, supports the state's contention. In both of those cases the statutes involved were almost identical with the statute involved in the instant case. The Montana statute seems to have been adopted from the New York statute, and in turn our statute seems to have been adopted from the Montana statute. The case of People v. Camp was decided in 1895. The case of Ex parte McDonald was decided in 1915. Our statute was enacted after the New York Case was decided and before the decision was rendered in the Montana case. A general rule of law frequently announced by the courts is that "when a statute has been adopted from another state or country, the judicial construction already placed on such statute by the highest courts of the jurisdiction from which it is taken accompanies it, and is treated as incorporated therein." 25 R. C. L. § 294, p. 1069. The rule, however, is not absolute. 25 R. C. L. § 295, p. 1073. If the general rule is to be applied in the instant case, it would result in this court following the construction placed upon the statute by the New York courts, rather than the construction of the Supreme Court of Montana.

The crime of false imprisonment is included within the crime of kidnapping. The former is an indictable misdemeanor, the latter a felony. At common law kidnapping consists of the unlawful seizure and removal of a person from his own country or state against his will. In this state the crime of kidnapping has been extended to other cases. Under the provisions of our statute, one who unlawfully seizes another without authority of law, with intent to cause him to be secretly confined or imprisoned within the state or to be sent out of the state against his will, is guilty of kidnapping. The unlawful seizure of a person, with the mere intent to confine or imprison the person seized within the state, is not kidnapping. The statute requires that the intent must be to cause him to be "secretly" confined or imprisoned. It is difficult, if not impossible, to distinguish between the intent to cause a person to be confined or imprisoned. It is difficult, if not impossible, to distinguish between the intent to cause a person to be confined or imprisoned and the intent to cause a person to be kept or detained. The words "confined," "imprisoned," "kept," and "detained" may well be said to be synonymous terms. If there is any distinction between the idea conveyed by the words "confine a person," "imprison a person," "keep a person," and "detain a person," it is that to confine or imprison a person is a more serious interference with personal liberty than to keep or detain a...