State v. Randall

• Decision Date: 08 July 1960
• Docket Number: No. 10107,10107
• Citation: 137 Mont. 534,100 A.L.R.2d 171,353 P.2d 1054
• Parties: , 100 A.L.R.2d 171 STATE of Montana, Plaintiff and Respondent, v. James Roger RANDALL, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1054

353 P.2d 1054

137 Mont. 534, 100 A.L.R.2d 171

STATE of Montana, Plaintiff and Respondent, v. James Roger RANDALL, Defendant and Appellant.

No. 10107.

Supreme Court of Montana.

Submitted May 2, 1960.

Decided July 8, 1960.

Robert J. Boyd, Anaconda, for appellant.

Forrest H. Anderson, Atty. Gen., Malcolm MacCalman, Deer Lodge, William F. Crowley, First Asst. Atty. Gen., for respondent. William F. Crowley, First Asst. Atty. Gen., argued orally.

ANGSTMAN, Justice.

Defendant, an inmate of the Montana State Prison, appeals from a judgment entered on a verdict of guilty of the crime of kidnapping with the intent to secretly confine. The verdict also found defendant had previously been convicted of a felony. It left the punishment to be fixed by the court and the verdict recommended leniency.

Counsel for defendant relies on the four following specifications of error:

1. Failure of the trial court to sustain defendant's demurrer to the information.

2. That the verdict and judgment are not sustained by the law or the facts.

3. Overruling and denying the defendant's motion for new trial.

4. Orally instructing the jury after submission of the case to the jury.

The offense charged herein arose out of an uprising inside the Montana State Prison at Deer Lodge at about 4:00 p. m. on April 16, 1959. According to the State's evidence, Lawrence E. Cozzens, a regular guard at the State Prison in charge of Cellhouse No. 2 returned from his lunch period at about 4:00 p. m. to relieve another guard, Victor Baldwin, who was in charge during Cozzens' absence. As Baldwin stepped out of the cellhouse to go to lunch he noticed a piece of material lying in the vestibule or on the steps. He picked it up and handed it to Cozzens. As he turned to leave, George Alton was standing there with a knife in his ribs and Baldwin and Cozzens were then surrounded by four inmates. The four were Jesse DeWeese, Jerry Myles, George Alton and the defendant Randall. All of the four inmates, according to Cozzens, were armed with knives. Baldwin could not see whether Randall had a knife as Cozzens was between him and Randall. Another inmate, by the name of Lee Smart, stood between the group and the door of the cellhouse holding a rifle.

The guards were then conducted by the above-named inmates to Cellhouse No. 1, which was in the control of another group of armed inmates, who had other captive guards and prison officials in a basement dungeon which was known as the 'Hole'. There the captives were kept for approximately an hour and a half or two hours, and then were taken out of the 'Hole' two at a time and placed in a tier of cells on the ground floor facing west in the Cellhouse known as Gallery Two. Later they were moved to Gallery Six, the third tier of cells facing west, still two men to a cell, and later moved to the last two cells in the north end of the tier where all of the imprisoned officers were held in two cells.

During the second day of confinement the guards were allowed to write to their relatives to state that they were all right, but were forbidden to tell where in the prison they were being confined; they were permitted no other communication with the outside world.

Warden Floyd E. Powell, who had been Warden of the Montana State Prison since August 25, 1958, testified that about 4:15 p. m. on April 16, 1959, he received a phone call from the administrative assistant, John Simonsen, and was told there had been a stabbing within the prison and the Warden was needed; that he entered the main gate of the prison and went to the administration building where the defendant, armed with a knife, seized him and pulled him into the building. Other inmates present at that time were Lee Smart and Jerry Myles who had been present when Cozzens, the victim named in the information, was seized. They were later joined by inmate George Alton.

The defendant, and inmates John Ahlbin and Jesse DeWeese testified in substance that defendant was a mere bystander and had nothing to do with the planning or execution of the seizure of Cozzens. Ahlbin also testified that defendant was not with Myles and Alton when Cozzens and Baldwin were moved through the dining hall area, and that he, Ahlbin, was the person who placed Cozzens and Baldwin in the cell known as the 'Hole'.

The defendant testified he was 22 years of age and eligible for parole in two weeks at the time of the uprising, and was returning from his job as a janitor in the mechanics school and started to hand his pass back to Cozzens when he, Cozzens and another guard, Victor Baldwin, were surrounded by the armed inmates who were the leaders of the uprising, viz., Jerry Myles, Jesse DeWeese, George Alton and Lee Smart; that after the seizure, the defendant entered an adjacent storeroom, took a quantity of tobacco and returned to his cell, stopping along the way to notify two other inmates, Donald Lee Smith and Clarence Dionne that there was some trouble downstairs and also to give them some of the tobacco.

The record shows that after the guards had been moved to the last cell defendant came to Cozzens and threatened to take his life. Defendant at that time was still carrying a knife.

All of the testimony shows that Cozzens and other officers and civilian employees were held in various cells in the new Cellhouse, as hostages and at no time was any effort made by the appellant, or any other inmate, to remove Cozzens from the Cellhouse or from the prison, and at all times the prison officials outside the walls knew that Cozzens and the other hostages were inside the walls but did not know the particular cells in which they were kept.

The charging part of the information reads as follows:

'That on or about the 16th day of April, 1959, and before the date of the filing of this Information, at and in the County of Powell, State of Montana, James Roger Randall, did then and there, wilfully, deliberately, unlawfully and knowingly, forcibly seize and kidnap one Lawrence Cozzens with the intent to secretly confine the said Lawrence Cozzens, within the State of Montana, all of which is contrary to the form, force and effect of the statute in such case made and provided and against the peace and dignity of the State of Montana.'

The offense of kidnapping under section 94-2602, R.C.M.1947, reads as follows:

'If any person shall wilfully and without lawful authority, forcibly seize, confine, inveigle, decoy or kidnap any person, with intent to cause such person to be sent or taken out of this state, or to be secretly confined within the same against his will, or shall forcibly carry or send such person out of this state against his will, he shall, upon conviction, be punished by imprisonment in the penitentiary not exceeding ten (10) years. Any person charged with such offense may be tried in any county into or through which the person so seized, inveigled, decoyed or kidnaped shall have been taken, carried or brought.'

Defendant contends that the information does not conform to section 94-6403, R.C.M.1947, in that 'the facts constituting the offense' of kidnapping with the intent to secretly confine are not set forth in 'ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.'

He also contends that the information does not conform to the requirements of section 94-6405, R.C.M.1947, in that 'the particular circumstances of the offense charged', and which are 'necessary to constitute a complete offense', are not set forth.

The information properly charged the offense of kidnapping in the language of the statute. State v. Shannon, 95 Mont. 280, 285, 26 P.2d 360; State v. Haley, 132 Mont. 366, 318 P.2d 1084; State v. Duncan, 130 Mont. 562, 305 P.2d 761; State v. Driscoll, 101 Mont. 348, 54 P.2d 571. Formerly it was the practice to allow the defendant the right to apply and obtain a bill of particulars if he deemed the information insufficient as to details and facts, but the cases so holding were expressly overruled in State v. Bosch, 125 Mont. 566, 242 P.2d 477. The demurrer was properly overruled.

The information contained a statement of the facts constituting the offense charged in ordinary and concise language so as to enable a person of common understanding to know what was intended. That is all that the statute requires.

Specifications Nos. 2 and 3 are argued together upon the question of whether or not the State of Montana, in law and fact, proved the essential element of the crime alleged, namely, that defendant 'secretly confined' the guard in question. Defendant contends that the confinement and imprisonment of the guard, Lawrence Cozzens, and all of the other so-called hostages, was not secret but intentionally disclosed and was a matter of common knowledge of the prison officials as all of the hostages were being held within the prison walls.

To 'secretly' confine within the meaning of our statute means confinement against the will of the person confined which deprives him of the friendly assistance...