State v. Taylor

Citation293 N.W. 219,70 N.D. 201
Decision Date08 July 1940
Docket NumberCr. 173
CourtUnited States State Supreme Court of North Dakota

Syllabus by the Court.

1. Every person who willfully seizes or confines another with intent to cause him, without authority of law, to be detained against his will is guilty of kidnapping under the provisions of subdivision 1, section 9514 of the Compiled Laws of this state.

2. The terms " kidnap" and " kidnapping" imply the taking and detaining of another, and this is sufficiently shown if there be an asportation of the victim, without any authority of law, and with the intent of detaining such person against his will.

3. Where an information charges kidnapping, it is sufficient to state the crime in the terms and the language of the statute. It is not necessary to state therein the purpose of the defendant. Neither is it necessary to allege actual violence nor that the defendant had an intent to injure the victim nor any intent other than the intention of doing the acts that are denounced by the statute.

4. Upon an arraignment on an information, the defendant may interpose the plea of once in jeopardy; and, if he desires to enter such plea, he must plead substantially that he has been once in jeopardy for the offense charged in this information, and at the same time, specify the time and place, and the court in which such jeopardy occurred.

5. To sustain a plea of former jeopardy for the offense charged in the information under which he is arraigned, it is necessary that the former information, under which the defendant claims to have been placed in jeopardy, show the same offense as the offense named in the information under which he is arraigned and not merely that it grew out of the same transaction. The offenses charged and the acts on which the informations are based must be one and the same, and the legal character of the crimes charged must be the same.

6. A plea of jeopardy is not in itself a denial of any of the allegations of the information, but sets up affirmative matter, and the burden of introducing evidence thereon is upon the defendant. If no evidence is presented on the trial in support of the plea, the court need not submit the plea to the jury.

7. Where the trial court is given by statute the discretion of imposing a penalty within limitations fixed by the statute, and the trial court, in passing sentence, exercises such discretion within the limitations fixed by statute, this court has no power to review the discretion of the court in fixing the term of imprisonment.

Appeal from District Court, Williams County; A. J. Gronna, Judge.

Fred Taylor was convicted of kidnapping, and he appeals.

Judgment affirmed.

Cameron & Cameron, for appellant.

The intent mentioned in the statute qualified each clause in the section to which it could be made applicable and such intent had to be alleged and proved in order to sustain a conviction, otherwise only the common-law offense of false imprisonment was charged and proved. Smith v. State, 93 Wis. 453, 23 N.W. 879.

A sentence so excessive as to violate the constitutional provision against cruel and unusual punishment may be reduced by an appellate court though it is within the maximum prescribed by statute. State v. Ross, 55 Or. 450; Mims v. State, 26 Minn. 494, 5 N.W. 369.

Alvin C. Strutz, Attorney General, and Eugene A. Burdick, State's Attorney, for respondent.

Where an amended criminal information is filed and there is no "demurrer," no request for a "bill of particulars" and no motion for "arrest of judgment," such criminal information is not vulnerable to attack for the first time on appeal. State v. Anderson, 66 N.D. 522, 267 N.W. 121.

It is incumbent upon the appellant to point out wherein the evidence is insufficient in specifying error. State v. Johns, 25 S.D. 451, 127 N.W. 470; 17 C.J. § 3497, note 67.

It is well established that the seizure need not be accompanied by the use of physical force or violence. 35 C.J. 904; 8 R.C.L. 297; State v. Autheman (Idaho) 274 P. 805, 62 A.L.R. 200.

In prosecutions for kidnapping, wilful intent to seize a person without authority of law is the essential issue. 35 C.J. 910; People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514, 114 A.L.R. 865; People v. Bruno, 49 Cal.App. 372, 193 P. 511.

In considering the question of one in jeopardy, it is important to break it down into component parts. There must be identity of crimes "in law and fact." State v. Panchuck, 53 N.D. 669, 207 N.W. 991; State v. Virgo, 14 N.D. 293, 103 N.W. 610; Underhill, Criminal Evidence, 3d ed. § 318.

Where the offenses charged are so diverse as not to admit of proof that they are the same, the court may decide the issue without submitting it to the jury. 14 Am. Jur. 960; Wilson v. State, 45 Tex. 79; Epps v. State, 38 Tex.Crim. 284, 42 S.W. 552.

The test is not whether the defendant has been tried for the same act, but whether he has been put in jeopardy for the same offense. 15 Am. Jur. 38; State v. Barnes, 29 N.D. 164, 150 N.W. 557.

It is the province of the district court to pass sentence in the case, exercising his discretion in the assessment of punishment, and being within the limits fixed by statute. State v. Jochim, 55 N.D. 313, 213 N.W. 484; Hall v. State, 113 Ark. 454, 168 S.W. 1125; State v. Kingen, 59 N.D. 327, 226 N.W. 505; State v. Youman, 66 N.D. 204, 263 N.W. 477.

Burr, J. Nuessle, Ch. J., and Christianson, Morris, and Burke, JJ., concur.

OPINION
BURR

On November 15, 1939, the defendant was arraigned on the charge of kidnapping, alleged to have been committed on September 15, 1939, and entered a plea of not guilty. In addition, the defendant pleaded "that he has been once in jeopardy for the offense charged in the information, to wit: that on the 18th day of September, 1939, he was found guilty of the crime of carrying concealed weapons which involved any and all acts incident to the matters charged in the information in the present case, and for which he was duly sentenced and is now serving his sentence."

The court declined to submit to the jury the issue raised by this plea on the theory there was nothing to submit on the record in the case.

On November 17 the jury returned a verdict of guilty as charged, and on the same day, the defendant was sentenced to be "imprisoned in the State Penitentiary at Bismarck, North Dakota, at hard labor, for the term of fifteen (15) years commencing at twelve o'clock, noon, of this day, this judgment and sentence to run consecutively with the judgment and sentence of one year in the Penitentiary heretofore imposed on September 18, 1939, upon said defendant, Fred Taylor, upon a conviction of the crime of Carrying a Concealed Weapon (Comp. Laws, Supp. 1925, § 9803b1) and that you stand committed until this sentence is complied with and until this judgment is satisfied."

The defendant moved for a new trial on the ground of insufficiency of the evidence to justify the verdict, and that "the court erred in withdrawing from the jury the issue raised by the plea of the defendant of a former conviction, said issue being one of fact for the jury and the court being entirely without legal authority to rule on question or issues of fact or to dismiss the said plea."

Further, "That the verdict is contrary to law and against the evidence." The motion for a new trial was denied, and the defendant appealed from the judgment of conviction, and from the order denying the new trial.

The specifications of error, stated briefly, are: That there is no evidence showing asportation, force, or direct evidence of fear on the part of the party alleged to have been kidnapped; that the court erred in withdrawing from the jury "the issue raised by the plea of the defendant of a former conviction;" that the court erred in passing judgment and sentence upon the defendant and providing that this sentence "should run consecutively with the Judgment and Sentence" imposed upon the defendant for the crime of carrying a concealed weapon; that the punishment imposed "was entirely out of proportion to any crime established by the" evidence, was imposed "by reason of passion and prejudice and against the conscience of the court," and in imposing it, the court "grossly exceeded his discretionary powers in imposing a sentence;" and that the court erred in denying the motion for a new trial.

There are but three issues to be reviewed on this appeal -- the sufficiency of the evidence to justify the verdict, the action of the court with reference to the plea of former jeopardy, and the action of the court in assessing a penalty of fifteen years' imprisonment in the penitentiary.

The evidence was furnished wholly by the state. It shows that between five-thirty and five-forty-five o'clock P.M., of September 15, 1939, Mrs. J. . . . had parked her car diagonally in front of the post office in Williston. When she returned and entered the car for the purpose of leaving, the defendant was on the sidewalk directly in front of her car; as she started to back the car away, the defendant walked between her car and the car parked to the right of her. When the front door of the car came opposite to him, the defendant opened the door, got in quickly, and said to her, "Keep driving. Drive out to the highway;" this startled her, she killed the engine, and the car rolled back to the curb; the defendant said, "If you are nervous, I will drive."

The defendant was dressed in overalls with a bib, and had his right hand under the bib so that the bib "bulged considerably." Because of this condition, the woman thought defendant was carrying a gun. Later it developed it was a knife he was carrying.

The woman did as commanded, and in backing out looked toward the persons in...

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