State v. Roberts

• Decision Date: 30 December 1974
• Docket Number: No. 85,85
• Citation: 210 S.E.2d 396,286 N.C. 265
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. James C. ROBERTS.

Page 396

210 S.E.2d 396

286 N.C. 265

STATE of North Carolina v. James C. ROBERTS.

No. 85.

Supreme Court of North Carolina.

Dec. 30, 1974.

Atty. Gen. James H. Carson, Jr., and Associate Atty. John R. Morgan, Raleigh, for the State.

Thomas F. Loflin, III, Durham, for defendant.

BOBBITT, Chief Justice.

There was ample evidence to support the verdict of guilty of assault on a child under twelve years of age, which on 18 July 1971 was a misdemeanor 'punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment not to exceed six (6) months, or both such fine and imprisonment . . ..' G.S. § 14/33(b)(5) and (c)(3). Defendant did not move to nonsuit this charge. Nor does he now contend the evidence was insufficient to support his conviction thereon. With reference to this charge, Judge Bailey instructed the jury as follows: '(I)f you find from the evidence and beyond a reasonable doubt that on or about the 18th of July, 1971, James Clifford Roberts Intentionally and without justification or excuse grabbed Kathy Cates by the arm and pulled her any distance against her will and against her wishes, and further find that at that time Kathy Cates had not reached her 12th birthday, and further find that at that time Clifford Roberts was a male person, it would be your duty to return a verdict of guilty of an assault on a child under the age of 12.' (Our italics.)

On defendant's first appeal, the Court of Appeals affirmed Judge Bailey's denial of defendant's motion to nonsuit the kidnapping (second) count. 18 N.C.App. 388, 197 S.E.2d 54 (1973). Because of the interlocutory aspects of that decision, defendant's application for Certiorari for immediate review thereof was denied by this Court, 283 N.C. 758, 198 S.E.2d 728. Whether defendant's motion should have been granted is now presented for decision.

With reference to the kidnapping (second) count, Judge Bailey charged the jury as follows: '(I)f you find from the evidence and beyond a reasonable doubt that on or about the 18th of July, 1971, James Clifford Roberts Wilfully and intentionally took Kathy Cates and carried her from a place in the driveway of this nursery to the foot of the steps leading into the nursery against her will and without lawful authority, by the use of force such as the grabbing of her arm and the forcible tugging her along, it would be your duty to return a verdict of guilty of kidnapping.' (Our italics.)

'Kidnapping' was a criminal offense at common law, a misdemeanor. By virtue of the statute now codified as G.S. § 4--1, the common law with reference to kidnapping became the law of this State. There had been no statutory modification thereof prior to the effective date (14 March 1901) of Chapter 699, Public Laws of 1901. Nor does it appear that any prosecution for 'kidnapping' had been reveiwed by this Court.

The 1901 Act provided that 'any person who shall Forcibly or fraudulently kidnap any person shall be guilty of a Crime, and upon conviction may be punished In the discretion of the Court not exceeding twenty years in the State's prison.' (Our italics.) When cofified, the wording of the 1901 Act was modified by substituting the word 'felony' for the word 'crime'. Revisal (1905), Sec. 3634, C.S.1919, Sec. 4221.

'( W)hen a statute punishes an act giving it a name known to the common law, without othrwise defining it, the statute is construed according to the common-law definition.' 22 C.J.S. Criminal Law § 21. Based thereon, indictments charging simply that the accused kidnapped a named person have been upheld as sufficient. State v. Lowry, 263 N.C. 536, 539--540, 139 S.E.2d 870, 873 (1965). However, elements of the common law crime of kidnapping had been stated differently by well recognized commentators. State v. Harrison, 145 N.C. 408, 417--418, 59 S.E. 867, 870--871 (1907); State v. Gough, 257 N.C. 348, 352--353, 126 S.E.2d 118, 121--122 (1962); State v. Lowry, Supra, at 539--510, 139 S.E.2d at 873--874; State v. Dix, 282 N.C. 490, 493, 193 S.E.2d 897, 899 (1973).

Our research indicates that the first prosecution for kidnapping reviewed by this Court was State v. Harrison, Supra. The opinion of Justice Brown quoted among others the definition of kidnapping found in 4 Balackstone's Commentaries 219, to wit: '(T)he forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another. . . .' This Court held that kidnapping did not require (or no longer requires) that the victim be carried away from his own country to another. Harrison's conviction for kidnapping an eight-year-old neighbor boy in Currituck County was upheld. There was no evidence that the victim was ever found alive or that a body identified as that of the victim was found.

Our research indicates the only other decision of this Court which reviewed a conviction for kidnapping alleged to have been committed when our statute law consisted of the 1901 Act is State v. Marks, 178 N.C. 730, 101 S.E. 24 (1919). In Marks, the defendant was indicted for kidnapping but convicted of an assault on a woman. In upholding the verdict and judgment, Chief Justice Clark, for the Court, noted that the evidence justified the action of the trial judge in submitting the kidnapping charge to the jury.

Our present statute was enacted as Chapter 542, Public Laws of 1933. It became effective 15 May 1933 and is now codified as G.S. § 14--39. It superseded the 1901 Act.

The 1933 Act in pertinent part, provided that '(i)t shall be unlawful for any person . . . to kidnap . . . any human being, or to demand a ransom of any person . . . to be paid on account of kidnapping, or to hold any human being for ransom . . .'; and that any person convicted of a violation of the statute 'shall be punishable by imprisonment for life.' (Our italics.)

Seemingly, the Lindbergh tragedy prompted the enactment of the 1933 Act. As interpreted by this Court, the 1933 Act leaves the term of imprisonment 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. Lowry, Supra, at 541, 139 S.E.2d at 874; State v. Bruce, 268 N.C. 174, 184, 150 S.E.2d 216, 224 (1966).

In State v. Smith, 210 N.C. 63, 185 S.E. 460 (1936), the conviction of defendants for kidnapping was reversed although the convictions for conspiracy to assault and simple assault were upheld. (Note: The record in Smith discloses a factual situation similar in many respects to that involved in such later cases as State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962), and State v. Murphy, 280 N.C. 1, 184 S.E.2d 845 (1971).)

Subsequent cases involving diverse factual situations in which convictions for kidnapping have been upheld include the following: State v. Kelly, Supra; State v. Witherington, 226 N.C. 211, 37 S.E.2d 497 (1946); State v. Streeton, 231 N.C. 301, 56 S.E.2d 649 (1949); State v. Dorsett, 245 N.C. 47, 95 S.E.2d 90 (1956); State v. Gough, Supra; State v. Lowry, Supra; State v. Bruce, Supra; State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966); State v. Arsad, 269 N.C. 184, 152 S.E.2d 99 (1967); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969); State v. Woody, 277 N.C. 646, 178 S.E.2d 407 (1971); State v. Penley, 277 N.C. 704, 178 S.E.2d 490 (1971); State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971); State v. Maynor, 278 N.C. 697, 180 S.E.2d 856 (1971); State v. High, 279 N.C. 487, 183 S.E.2d 633 (1971); State v. Murphy, Supra.

No attempt will be made to reconcile all cited cases. Suffice to say, no single common-law definition seems sufficient to cover all of the factual situations in the cases in which convictions have been upheld. In general, it appears that, subsequent to the increase in maximum punishment authorized by the 1933 Act, our decisions have tended to relax the common-law requirements for conviction of kidnapping, at least until the decision of this Court in State v. Dix, 282 N.C. 490, 193 S.E.2d 897 (1973).

In State v. Ingland, Supra, a new trial was awarded on account of error in the court's instructions to the jury. Inter alia, this Court held that the unlawful seizure and detention of a human being For the purpose of unlawfully taking and carrying him away against his will by force or fraud or intimidation was false imprisonment but not kidnapping. In so holding, the Court, in an opinion by Justice Huskins, withdrew as unauthoritative contrary expressions in prior opinions. It was stated, '(C)ommonlaw kidnapping contemplates, in addition to unlawful restraint, a carrying away of the person detained. State v. Harrison, 145 N.C. 408, 59 S.E. 867 (1907), quotes Bishop's definition of kidnapping as "false imprisonment, aggravated by conveying the imprisoned person to some other place."' See 2 Bishop, Criminal Law § 750 (9th ed. 1923). For a discussion of the elements of the common law crime of false imprisonment, see State v. Ingland, Supra, at 51, 178 S.E.2d at 582--583.

As held in Ingland, the word KIDNAP, as used in G.S. § 14--39, means the unlawful taking and carrying away of a human being against his will by force or fraud or threats or intimidation. In the present case, the questions are whether the evidence was sufficient to show (1) that defendant falsely imprisoned Kathy, and (2) that he unlawfully carried her away by force, in such manner as to constitute the felony of kidnapping.

No attempt will be made to mark out the limits of what constitutes a false imprisonment or a carrying away sufficient to satisfy these elements in the crime of kidnapping. Here, the entire incident occurred during the seconds it took defendant to pull Kathy a distance of 80 to 90 feet, at a time when Larry and Sue were screaming and running for readily available help and Kathy was resisting by word and by deed defendant's efforts to make her go along with...