State v. Tatreau
| Decision Date | 07 February 1964 |
| Docket Number | No. 35554,35554 |
| Parties | STATE of Nebraska, Appellee, v. Harry Dean TATREAU, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Penal statutes are inelastic and must be strictly construed. They are never extended by implication.
2. 'Imprison' as used in section 28-417, R.R.S.1943, means the unlawful confinement of another person against his will within boundaries fixed by the actor for the purpose of extorting money, property, or a promise of the performance of an act.
3. The dominating element of the offense of kidnapping is the intent with which the acts enumerated in the statute are committed.
4. When a statute is required to be strictly construed such statute should have a sensible construction.
5. A guide to the meaning of a statute is found in the evil which it is designed to remedy.
6. The evidence examined and the hair samples held to be sufficiently identified and a proper foundation laid for their admission.
7. It is the duty of a court to administer the law as it exists.
8. The range of the penalty for any offense is a matter for legislative determination.
9. The court exercises its discretion as to the penalty to be applied under any particular state of facts within the range provided by the law.
10. The Legislature has fixed the public policy of this state for determining what shall be done in kidnapping cases. It is a policy of long standing. It is a trite statement, but it is our duty to enforce the law.
Nanfito & Nanfito, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Homer Hamilton, Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.
This is an appeal from a conviction on an information charging Harry Dean Tatreau with imprisoning three children for the purpose of extorting money from their father. Harry Dean Tatreau will be hereinafter referred to as defendant. The State of Nebraska will be referred to as State.
We determine the following to be the facts necessary to understand the problem herein. On July 21, 1962, at approximately 7 a. m., shortly after Harry Lewis had left his home at 5619 Western Avenue, in the city of Omaha, Nebraska, his son Gary, who was asleep in a downstairs bedroom, was awakened by a man standing over him with a gun in his hand, and was told, "Do as we tell you and you won't be harmed." The man was wearing a dark suit with a white shirt, and his head was covered by a silk stocking mask. Another man with a gun, similarly clothed and masked, stood in the doorway. Gary's hands were bound with adhesive tape and he was taken upstairs to his mother's bedroom. She was awakened and taped in a similar fashion. She likewise was told to do as she was told and she wouldn't get hurt. She reached for her glasses but one of the men, later identified as the defendant, grabbed them and threw them, saying: "You won't be needing these, you don't have to see." The commotion brought her two other children, Dennis and Marshall, who were sleeping in another upstairs room, to her room. The three boys were taped together with their hands interlocked, and were taken to the basement of the house by the defendant. They were placed in an enclosed basement room, identified as the washroom, and were told that if they had untaped themselves when the defendant came back to check the tape, they would be knocked down. The door was then closed and a sofa was moved against it so that the door could not be opened from the inside. The boys remained confined in the room until they were released by the police.
When the defendant took the boys to the basement, his companion, Junior James Salanitro, hereinafter referred to as Salanitro, took Mrs. Lewis downstairs to the livingroom. She knew that the boys had been taken to the basement, but did not know where, or what had happened to them. When the defendant returned, Mrs. Lewis complained that her hands were tied too tightly, and the defendant, in response to Salanitro's question, said: "It is not going to kill her." Mrs. Lewis was ordered to call her husband who was employed at Lewis Liquor Market, 818 North Sixteenth Street, Omaha, Nebraska. Because she could not see to dial the phone, she gave them the number. Salanitro dialed it and talked to her husband, then gave her the phone. The defendant went upstairs to an extension phone.
When his wife called, Harry Lewis, sensing something was wrong, started asking for information, and was told by one of the men on the phone: "Damn it, keep your mouth shut, we will tell you what we want done." Mrs. Lewis visited with her husband who had a heart condition. She told him not to get nervous, and that the men were holding them and wanted money from the store. Salanitro took the phone from Mrs. Lewis. Harry Lewis recognized two different male voices on the phone. He pleaded with them not to harm his family, and assured them he would be cooperative. He was told to go to the front door, admit a man in a black coat, and give him the receipts from the store. He went to the front door and saw no one near the premises, so he went next door and told one Dave Bernstein to notify the police, and then went back to the telephone and reported that no one was at the front door or in front of the store. He was then told to check the back door, which he did. He reported back that no one was there, and was told to stay on the phone and keep talking. He could hear the two men visiting between themselves as to what should be done. All of a sudden over the phone he heard someone holler, "The police is here." Mrs. Lewis testified this had been precipitated by the ringing of the doorbell. The defendant dashed for the kitchen, and Salanitro dashed upstairs. Mrs. Lewis admitted the police. They found Salanitro under an upstairs bed, with his gun on his chest. The defendant escaped and was taken into custody at his attorney's office 3 days later.
Defendant urges six assignments of error, the first four of which essentially involve two issues: Was it necessary to remove the Lewis children from their place of abode to constitute imprisonment within the meaning of said section; and, if so, did the defendant imprison the Lewis children within the ambit of section 28-417, R.R.S. 1943?
The defendant was prosecuted under section 28-417, R.R.S.1943, which is as follows: (Italics supplied.)
The aforesaid statute has four separate classifications. The first one is a restatement of the common law definition of kidnapping. The other three relate to offenses which constitute the crime, without the requirement for removal out of the state. The only difference in the last three is that no injury or threat need be present in the second classification. The one involved herein is the second classification, the one italicized. In this state, all public offenses are statutory; no act is criminal unless the Legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law. Lane v. State, 120 Neb. 302, 232 N.W. 96.
Do the facts herein bring this case within the ambit of the statute? Did the defendant imprison the Lewis children for the purpose of extorting money from their father?
Defendant argues that the State has failed to prove any imprisonment within the meaning of the statute, as intended by the Legislature when the present law was enacted, because the three boys were not confined off the premises.
There is no question the present law was enacted after the Edward Cudahy kidnaping on December 18, 1900, because the law then in effect did not cover kidnapping if the victim was over 10 years of age unless the victim was to be transported out of the state. Chapter IV, section 18, of the Criminal Code, Compiled Statutes of Nebraska, 1889, was as follows: 'Any person or persons who shall kidnap or forcibly or fraudulently carry off or decoy out of this state any person or persons, or shall arrest or imprison any person or persons, with the intention of having such person or persons carried out of the state, unless it be in pursuance of the laws thereof, shall be confined in the penitentiary not less than three nor more than seven years, and shall, moreover, be liable for the costs of prosecution.' Section 20 of the same chapter was as follows: ...
To continue reading
Request your trial
-
In re Nebraska Community Corrections
...579, 162 N.W.2d 774, 776 (1968), quoting State ex rel. Nelson v. Smith, 114 Neb. 653, 209 N.W. 328 (1926). 27. See State v. Tatreau, 176 Neb. 381, 126 N.W.2d 157 (1964). 28. Id. at 392, 126 N.W.2d at 29. State v. Divis, 256 Neb. 328, 333-34, 589 N.W.2d 537, 541 (1999). 30. State v. Joubert,......
-
State v. Simants
...not to lead to injustice, oppression, or an absurd consequence. Macomber v. State, 137 Neb. 882, 291 N.W. 674. See, also, State v. Tatreau, 176 Neb. 381, 126 N.W.2d 157. A primary rule of construction is that the intention of the Legislature is to be found in the ordinary meaning of words o......
-
Vencil v. Valmont Industries, Inc.
...of statutes); Bowers v. Maire, 179 Neb. 239, 137 N.W.2d 796 (1965) (court will not indulge in judicial legislation); State v. Tatreau, 176 Neb. 381, 126 N.W.2d 157 (1964) (duty of court to administer law as it BOSLAUGH, WHITE and FAHRNBRUCH, JJ., join in this concurrence. ...
-
State v. Stratton
...in this respect, exercised within constitutional limits, is not subject to review by the courts.' " Further, in State v. Tatreau, 176 Neb. 381, 126 N.W.2d 157 (1964), the defendant assigned as error the imposition of a life sentence. This court noted that the penalty imposed was the only on......