United States v. Parrino, 176
| Decision Date | 07 March 1950 |
| Docket Number | Docket 21588.,No. 176,176 |
| Parties | UNITED STATES v. PARRINO. |
| Court | U.S. Court of Appeals — Second Circuit |
Harold Turk, Brooklyn, N. Y., Harry K. Nadell, Brooklyn, N. Y., for appellant.
Frederick H. Block, New York City (Irving H. Saypol, United States Attorney, New York City, Bruno Schachner, Daniel H. Greenberg, New York City, Assistant United States Attorneys, of counsel), for appellee.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
Parrino appeals from his conviction upon an indictment in two counts: one, for kidnapping, and the other, for conspiring to kidnap.1 Only one question is involved: whether the prosecution was already barred by the Statute of Limitations, when the indictment was found in October, 1948. The facts, so far as relevant, are as follows. Parrino had been indicted in September, 1934, for a conspiracy to kidnap one, Rozen; but he had "fled from justice" within the meaning of the Criminal Code,2 and remained in hiding until at least February, 1940. On November 19, 1937, Judge Knox entered a nolle prosequi on the first indictment at the request of the district attorney, and upon his return Parrino began to live an innocent life in Brooklyn. He obtained a social security card; registered as an alien with the Department of Justice; opened a savings bank account, and a drawing account in a bank of discount; registered under the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq.; registered a commercial truck and a passenger car, and renewed their licenses; started a grocery business, and took out insurance on his stock of goods; procured a marriage license and was married in church; took out ration books; filed income tax returns and employer's information returns; and filed a petition for naturalization, supported by a certificate of good conduct from the police. All these activities went on under his own name and without concealment until the autumn of 1948, when he was discovered by the Federal Bureau of Investigation and arrested. Rozen, the man kidnapped, had been released soon after the first indictment was found; but the only information in the present record about his condition at the time of his release is that a jury might have found that he was released harmed within the meaning of the statute.3 In charging the jury the judge said that, if they found that the kidnapped person had not been "liberated unharmed," they were to declare whether they recommended the death penalty. The jury returned a verdict of guilty upon both counts without recommending the death penalty, and the judge imposed a sentence of twenty-five years.
The prosecution makes two answers to Parrino's defence that the present indictment was found fourteen years after the crime was committed. The first is that the indictment was for an "offense punishable by death," and might therefore be "found at any time" without regard to the three year statute.4 We agree that the indictment stated all the essentials of the crimes charged, and that it was not necessary to allege that the victim was not released "unharmed" in order that the jury might recommend the death-penalty. That is an allegation going only to the punishment, and, although the accused has to be adequately advised of it, since the jury must pass upon it, it will be enough if he gets the information in season from any source. Indeed, even though the allegation touched one of the elements of the crime itself, the failure to include it would be at worst a "variance," and would "not affect substantial rights," if the accused were given adequate advance opportunity to answer.5 However, this argument, to which, as we say, we agree, is not relevant to the important issue; which is whether the second indictment was found in time. The statute, when it wiped out all limitation by the words, "punishable by death," did not make the character of the crime the test, but the penalty that could be imposed upon it; and in the case of kidnapping the jury does not get power to impose the death penalty unless the victim has not been released at all, or has been released "harmed." When a crime is made "punishable" by a prescribed penalty — fine, forfeiture, imprisonment, death, or anything else — the choice of the kind and character of the sentence is confided to some authority in its discretion; and it does not become "punishable" by that authority until all the conditions imposed upon the exercise of its discretion have been satisfied. Kidnapping is made "punishable" by two kinds of penalty, and, indeed, by two different authorities. It is "punishable" by either penalty, as soon as the prescribed authority becomes free to exercise its discretion; and the jury becomes free to do so only if the condition is satisfied that the victim has not been released "unharmed." This would be at once apparent, if the discretion as to both penalties were vested in the judge, but his discretion to impose the death penalty were made conditional upon the finding of a jury that the victim had not been released "unharmed." The situation is the same as in those jurisdictions in which the maximum penalty for a crime depends upon whether the convict is a recidivist; for under such statutes, although the crime remains the same, it is "punishable" by one penalty when he is a recidivist and by another when he is not.
It follows that, if three years pass after a kidnapping, an indictment is barred if the victim has been released "unharmed," within that period. We need not decide whether it would also be barred, if after that period the victim were released "unharmed." That is not before us; and, indeed, it can scarcely be of more than academic interest anyway, for a kidnapped victim will seldom, if ever, be held three years for ransom and then released "unharmed." Since all we know about Rozen's condition at the time of his release, is that a jury might have found him "harmed," we cannot tell whether the jury did not recommend the death penalty, because they decided that the victim had been released "unharmed," or because, although they found that he had been released "harmed," they used their discretion in his favor. Therefore, unless the three year statute was tolled by Parrino's fight, the conviction must be reversed and the case remanded for a new trial. The Third Circuit in United...
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