United States v. Varner

Decision Date03 January 1961
Docket Number13088.,No. 13006,13006
Citation283 F.2d 900
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Diane VARNER, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Doris A. Coonrod, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before DUFFY, SCHNACKENBERG and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

Defendant was charged by indictment with the violation of Title 18 U.S.C. § 1201, commonly known as the Kidnaping Statute. A trial was had by jury, which resulted in a verdict of guilty. On January 15, 1960, judgment was entered thereon and defendant sentenced to imprisonment for a term of fifteen years. (We are advised by government's brief that in a subsequent proceeding had under Title 18 U.S.C. § 4208, the sentence was reduced to five years.) From this judgment defendant appeals.

Defendant attacked the sufficiency of the indictment by a motion to dismiss, which was denied. Defendant also moved for a judgment of acquittal, at the conclusion of the government's case and at the conclusion of the entire case, both motions on the ground that the proof was not sufficient to sustain the charge as made. These motions were also denied. The court also denied defendant's motion in arrest of judgment and for a new trial.

The statutory provision upon which the indictment was predicated provides, so far as here material, "Whoever knowingly transports in interstate or foreign commerce, any person who has been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away and held for ransom or reward or otherwise italics ours * * *." Then follows the punishment to be imposed, depending upon the circumstances set forth, which is not material to the questions for decision.

The indictment charges in substance that on or about November 18, 1959, defendant did transport in interstate commerce from Chicago, Illinois, to Gary, Indiana, James Lloyd Vickers, who had been unlawfully seized, kidnaped, abducted, and carried away, "and held for reward or other reasons italics ours."

We are of the view that only two questions need be considered on this appeal: (1) was the indictment sufficient to withstand a motion to dismiss? and (2) if that question be answered in the affirmative, did the court err in its denial of the motion for judgment of acquittal?

In the view which we take of the issues for decision, there is no occasion to more than briefly state the facts. Marilyn Vickers, mother of the alleged kidnaped child, engaged the defendant as a baby sitter, in which capacity she had previously served. On October 18, 1959, the mother left the baby with defendant in a room at the Wabash Hotel in Chicago. The defendant during that evening took the baby to the Stanley Hotel, Gary, Indiana, where on the next day the baby was apprehended by an agent of the Federal Bureau of Investigation, taken into custody and returned to the mother. The record reveals a dispute as to the purpose of the baby's transportation from Chicago to Gary. The mother testified that she told defendant not to take the baby from the Chicago hotel. Defendant testified that when the baby was left with her she told the mother that she could not sit long because she was going to Gary that night, and that the baby's mother said she was having a hard time supporting the baby, that her husband had deserted them and did not contribute to their support, and that she suggested that defendant take the baby with her to Gary for a few days. This conflict in the testimony presented an issue of fact for the jury, if the case was properly submitted.

The government in rebuttal offered testimony that defendant at the time of her arrest stated "that she would like to have a baby, that she could not have one of her own, and that she would give a million dollars for a baby." The government in its brief appears to recognize that the only reason for the alleged kidnaping, transportation and holding was defendant's maternal instinct and desire to have a child of her own.

Now returning to the issue as to the sufficiency of the indictment, the statute, as noted, provides, "and hold for ransom or reward or otherwise." The indictment alleges, "and hold for reward or other reasons." The government contends that "or other reasons" is synonymous with the statutory language "or otherwise." We see no occasion to quibble about this deviation from the statutory language. The fact is that neither these statutory words nor those used in the indictment, standing alone, carry any meaning. The government goes so far as to contend that the allegation, "for reward or other reasons," is not essential to the charge of kidnaping and subsequent interstate transportation of the victim. It asserts, "The indictment phrase is surplusage." Referring to the statute, the government states, "It applies to kidnaping for any reason or purpose," and, referring to Congress, states, "It intended to prohibit totally and completely the transportation of kidnaped persons in interstate commerce." Thus, the government would render meaningless, in fact eliminate, the statutory phrase, "and hold...

To continue reading

Request your trial
14 cases
  • Loux v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • February 16, 1968
    ...did not specify these reasons, the defendants could only be convicted for holding the Jeppes for ransom or reward. United States v. Varner, 7 Cir., 1961, 283 F.2d 900; United States v. Bazzell, 7 Cir., 1951, 187 F.2d 878. Kidnapping to prevent capture is not considered holding for ransom or......
  • Hall v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 13, 1969
    ...States v. Bentley, 310 F.2d 685 (6th Cir. 1962); Dawson v. United States, 292 F.2d 365 (9th Cir. 1961). But see United States v. Varner, 283 F. 2d 900 (7th Cir. 1960). Neither do we find merit in Hall's contention that the "or otherwise" specification is per se inadequate when used in an in......
  • United States v. Wolford
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • March 25, 1971
    ...H. Parker as a successful and competent detective, whereby his services would come to be in great demand"); contra, United States v. Varner, 283 F.2d 900 (7th Cir. 1960) (child abduction as a consequence of "defendant's maternal instinct and desire to have a child of her own" did not consti......
  • US v. Brighton Bldg. & Maintenance Co.
    • United States
    • U.S. District Court — Northern District of Illinois
    • July 28, 1977
    ...and allows the jury to draw the inference that the defendant is accused of crimes not charged in the indictment. United States v. Varner, 283 F.2d 900, 903 (7th Cir. 1960); United States v. Pope, 189 F.Supp. 12, 25-26 (S.D.N.Y. 1960). Cf. Marsh v. United States, 344 F.2d 317, 322 (5th Cir. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT