State v. Murphy

Chief Justice Bobbitt

dissenting.

The gruesome manner in which defendant assaulted, tortured and seriously injured Steve Turner is graphicly described *8 in the portion of Steve’s testimony quoted in the Court’s opinion. For this unprovoked and brutal attack defendant was indicted and convicted of felonious assault and sentenced to the maximum term of ten years. He does not appeal from his conviction and sentence for felonious assault.

Defendant was also tried and convicted of kidnapping and sentenced to serve 28 years, the sentences to run concurrently. His appeal is from this conviction and sentence; and the sole question is whether the evidence is sufficient to warrant submission of the kidnapping case to the jury.

The indictment for kidnapping charges that defendant “unlawfully, wilfully, feloniously, without lawful authority, by the means of trickery, artifice and fraud, and by physical force did kidnap and carry away one Steve Turner, against the will of the said Steve Turner,” etc.

There was no evidence of the actual or threatened use of physical force prior to defendant’s surprise assault on Steve.

Our statute, G.S. 14-39, does not define kidnapping but prescribes the punishment therefor. Kidnapping, as used in G.S. 14-39, is generally defined in our decisions as the unla'wful taking and carrying away of a human being against his will by force or fraud. State v. Ingland, 278 N.C. 42, 50 , 178 S.E. 2d 577, 582 (1971), and cases there cited. As interpreted in our decisions, this statute leaves the term of imprisonment for kidnapping in the discretion of the court, imprisonment for life being the maximum punishment. State v. Kelly, 206 N.C. 660, 663 , 175 S.E. 294, 296 (1934); State v. Barbour, 278 N.C. 449, 457-58 , 180 S.E. 2d 115, 120-21 (1971).

G.S. 14-39 draws no distinction in respect of the permissible punishment for kidnapping on account of such factors as (1) the duration of the victim’s unlawful detention, (2) the distance the victim is unlawfully taken and carried away, (3) whether the victim’s life is endangered or threatened while unlawfully taken, carried away or detained, and (4) whether the victim is physically or otherwise injured prior to release, escape or rescue.

Implicit in our general definition of kidnapping are these essentials, (1) an unlawful carrying away of the victim, and (2) an unlawful deprivation of the victim’s liberty by force or intimidation. These essentials occur simultaneously when the *9 victim is deprived of his liberty by force or intimidation and is immediately carried away. Fraud may take the place of force in initiating a kidnapping. Thus, a person may be induced by fraudulent representations to go to a destination where the kidnapper changes from apparent friend to malefactor and there deprives him of his liberty by force or intimidation.

In prior decisions involving a conviction for kidnapping, other than State v. Smith, 210 N.C. 63 , 185 S.E. 460 (1936), and State v. Knight, 248 N.C. 384 , 103 S.E. 2d 452 (1958), there was plenary evidence of the victim’s unlawful confinement or imprisonment by force or intimidation. State v. Harrison, 145 N.C. 408 , 59 S.E. 867 (1907); State v. Kelly, supra; State v. Witherington, 226 N.C. 211 , 37 S.E. 2d 497 (1946); State v. Streeton, 231 N.C. 301 , 56 S.E. 2d 649 (1949); State v. Dorsett, 245 N.C. 47 , 95 S.E. 2d 90 (1956); State v. Gough, 257 N.C. 348 , 126 S.E. 2d 118 , 95 A.L.R. 2d 441 (1962); State v. Lowry, 263 N.C. 536 , 139 S.E. 2d 870 (1965); State v. Bruce, 268 N.C. 174 , 150 S.E. 2d 216 (1966); State v. Turner, 268 N.C. 225 , 150 S.E. 2d 406 (1966); State v. Arsad, 269 N.C. 184 , 152 S.E. 2d 99 (1967); State v. Williams, 275 N.C. 77 , 165 S.E. 2d 481 (1969); State v. Perry, 275 N.C. 565 , 169 S.E. 2d 839 (1969); State v. Woody, 277 N.C. 646 , 178 S.E. 2d 407 (1971); State v. Penley, 277 N.C. 704 , 178 S.E. 2d 490 (1971); State v. Ingland, supra; State v. Barbour, supra; State v. Maynor, 278 N.C. 697 , 180 S.E. 2d 856 (1971); State v. High, 279 N.C. 487 , 183 S.E. 2d 633 (1971). In State v. Smith, supra, and State v. Knight, supra, this Court held that there was insufficient evidence to constitute kidnapping.

Although not referred to in the majority opinion, I am aware that the opinion in State v. Gough, supra, contains the following statement: “In the present case there was no actual confinement or detention of Elaine Saunders, nor any actual force used by defendant.” Id. at 357 , 126 S.E. 2d at 124 , 95 A.L.R. 2d at 448 . In my opinion the facts in evidence did not justify this statement. According to the State’s evidence, Gough, the defendant, went to the Saunders home about 9:00 p.m. Elaine, aged 15, and her younger sister, left with the defendant in the defendant’s car. They did so because of the defendant’s false and fraudulent representations that he wanted Elaine in his home as a babysitter, to enable the defendant and his wife to go out. After various stops and changes of direction, the defendant turned off onto a dirt road, slowed the car, told the *10 girls he was not “Dr. Watson,” as he had told them and their parents, but was “Frank Jackson,” and “if [they] would be nice to him and cooperate with him [they] wouldn’t get hurt and he would pay [them] nice.” Id. at 350 , 126 S.E. 2d at 120 , 95 A.L.R. 2d at 444 . Elaine and her sister jumped out of the slowly moving car and ran back up the dirt road about a mile and aroused the occupants of a house. Although I concurred in the decision that the evidence was sufficient to support the verdict, I was of opinion that these girls from the time they became aware of the defendant’s sinister purpose were substantially confined and imprisoned by the defendant while he had them in his car during travels over unknown ways in the nighttime. While a borderline case of kidnapping, I thought the evidence as to unlawful confinement or imprisonment was sufficient notwithstanding neither of the girls was physically harmed.

In State v. Ingland, supra, it was held that unlawful restraint or imprisonment alone did not constitute kidnapping, but that the asportation or carrying away of the victim was also an essential element of the crime. In Ingland , there was ample evidence of the victim’s unlawful restraint or imprisonment. Conversely, in the present case, there is ample evidence of the asportation or carrying away of the victim, namely, that Steve was induced to go into the woods by defendant’s fraudulent representations. Unlike Ingland , the crucial question here is whether there is evidence sufficient to support a finding that Steve was deprived of his liberty by force or intimidation. In my opinion, the answer is, “No.”

All agree that defendant’s conduct was despicable. Perhaps imprisonment for ten years under the judgment in the felonious assault case or such portion as he may serve is not sufficient punishment for conduct that may have caused Steve’s death and certainly inflicted injury of a serious and probably a permanent nature. However, the legal question is whether defendant is guilty of the independent crime of kidnapping. Can a distinction be drawn between defendant’s guilt under present circumstances and his guilt if he came upon Steve by chance in the woods and assaulted him in the same manner? Conversely, would he be guilty of kidnapping and subject to the possibility of a life sentence if instead of committing a cruel and barbarous assault he had committed a simple assault by slapping Steve, without injuring him?

*11 In my opinion, the unlawful restraint or imprisonment necessary to constitute the unlawful deprivation of liberty essential to the crime of kidnapping involves more than a surprise attack. It involves the actual loss of liberty for a significant period under circumstances sufficient to cause the victim to be conscious of such restraint or imprisonment and to be apprehensive of injury on account thereof. Although Steve was brutally assaulted and tortured, in my opinion there is no evidence sufficient to support a finding that he was unlawfully restrained or imprisoned and deprived of his liberty within the meaning of this essential of the crime of kidnapping. Therefore, although mindful of the depraved conduct of defendant, I vote to reverse the verdict and judgment in the kidnapping case.