State v. Strauser

• Decision Date: 22 March 1954
• Docket Number: No. 9386,9386
• Citation: 63 N.W.2d 345,75 S.D. 266
• Parties: STATE v. STRAUSER.
• Court: South Dakota Supreme Court

Page 345

63 N.W.2d 345

75 S.D. 266

STATE v. STRAUSER.

No. 9386.

Supreme Court of South Dakota.

March 22, 1954.

Ralph A. Dunham, Atty. Gen., E. D. Barron, Asst. Atty. Gen., John J. Heye, State's Atty., Custer County, Custer, for plaintiff and respondent.

Robert C. Bakewell, Jr., Custer, for defendant and appellant.

LEEDOM, Judge.

Appellant was found guilty by a Custer County circuit court jury, of the crime of second degree kidnaping. Judgment was entered on the verdict sentencing him to life imprisonment. By appropriate assignments of error and forceful argument appellant here raises questions concerning the sufficiency of the information, the propriety of giving and refusing certain instructions to the jury, and the sufficiency of the evidence to support the verdict. We find no prejudicial error in the record and affirm the judgment entered in the circuit court.

Appellant contends that the information is bad because, first, it contains no allegation that the purpose of the kidnaping was for ransom or reward, or any pecuniary consideration; and second, it contains no allegation that the kidnaping was for any other specified purpose. There is no merit in either contention.

The South Dakota statute against kidnaping, under which appellant was convicted, follows very closely the language of a Federal enactment making the transportation of kidnaped persons in interstate or foreign commerce a Federal offense. The Federal act, the so-called Lindberg law, Act of June 22, 1932, Ch. 271, 47 Stat. 326, ¹ as first adopted made unlawful such transportation of '* * * any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward * * *.' Thereafter it was amended, 48 Stat. 781, so that the words hereafter italicized were added to the original words of 'ransom or reward' which limited the purpose of the kidnapings within the scope of the Federal act. As amended the act applied to transportation of persons kidnaped for '* * * ransom or reward or otherwise, except, in the case of a minor, by a parent thereof * * *.' The Lindberg law, thus amended, was construed by the Supreme Court of the United States in Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 396, 80 L.Ed. 522. The only issue there before the Court was whether or not under the theory of ejusdem generis the words 'ransom or reward' should import to the added words 'or otherwise' 'some pecuniary consideration or payment of something of value'. In rejecting the theory the Court quoted a recommendation of the House Judiciary Committee relating to the amendment and the added words 'or otherwise', stating in part 'This will extend Federal jurisdiction under the act to persons who have been kidnaped and held, not only for reward, but for any other reason, except that a kidnaping by a parent of his child is specifically exempted.' (Italics ours.) The Court also said that Congress evidently intended to prevent transportation of any person, restrained 'in order that the captor might secure some benefit to himself.' The uncertainty however, if any existed through the use of the language last quoted, as to whether or not it was the intention to restrict the operation of the Lindberg law to kidnaping committed for only limited purposes, has been cleared by subsequent cases in the Federal courts. Head v. United States, 10 Cir., 199 F.2d 337, holds that kidnaping for any purpose is within the purview of the Federal act as amended and expressly rejects the contention that an allegation of purpose is essential to a conviction. The court relies on the Gooch case and the legislative reports and recommendations therein set out. The Head case also holds that Chatwin v. United States, 326 U.S. 455, 66 S.Ct. 233, 90 L.Ed. 198, on which appellant here relies, is not authority for the proposition that an indictment must allege a purpose of benefit to the captor. In United States v. Parker, 3 Cir., 103 F.2d 857, 861, it is stated '* * * that Congress by the phrase 'or otherwise' intended to include any object of a kidnapping which the perpetrator might consider of sufficient benefit to himself to induce him to undertake it.' This decision affirms the decision of the United States District Court reported in 19 F.Supp. 450, in which there is a comprehensive and able discussion of the background of kidnaping generally and the Lindberg law in particular. See also United States v. Baker, D.C., 71 F.Supp. 377.

It was after Congress had adopted and amended the Lindberg law and after the Supreme Court had rendered the Gooch decision on the law as amended, that the South Dakota kidnaping statute was enacted. Inasmuch as the state law follows so closely the federal law, as previously stated and comparison discloses, there is a presumption that the legislature intended to enact a law with the meaning that the court had previously placed upon the statute that served as the pattern for the later enactment. Melby v. Anderson, 64 S.D. 249, 266 N.W. 135. We construe our statute as the Lindberg law was construed in the Gooch case and as the subsequent Federal cases above cited have since interpreted the Federal act and the language of the Supreme Court in the Gooch decision. This means that it is not necessary to allege that the kidnaping was for reward or ransom or for any other specific purpose. Apart from the presumption created by the interpretation of the Federal act prior to enactment of our statute, our construction is the reasonable construction of the statutory language. When the legislature made it unlawful to kidnap another person for 'ransom, reward or otherwise' the word 'otherwise' extends the prohibition of the statute to restraint in any case other than for ransom or reward. Such is the ordinary and usual meaning of 'otherwise'. Our statute was intended to and does outlaw kidnaping regardless of the purpose of the restraint and we are not persuaded by any of appellant's arguments to the contrary.

What we have said also rejects the contention that the trial court erred in instructing the jury that '* * * the holding by the defendant for any purpose is sufficient whether such purpose is known to you or not so long as such person is being held. * * * Such person might be held for spite, for immoral purposes, or for any reason whether reasonable to you or not. The gist of this phase of the case is the holding for some reason'.

Appellant also attacks the information on this account: The information sets out all the statutory words of restraint disjunctively rather than...