holding that a detective trying to enhance his reputation by obtaining a confession from a suspect whom he illegally detained counted as a benefit
How later courts described this case
- holding that a detective trying to enhance his reputation by obtaining a confession from a suspect whom he illegally detained counted as a benefit
- purpose was to induce confession to kidnapping Charles A. Lindbergh, Jr.
Written by the judges who cited it.
The opinion
BUFFINGTON, Circuit Judge
(dissenting).
In this case it appears that in pursuance of the kidnapping statute of May 18, 1934, commonly known as the Lindbergh Law, Ellis H. Parker and Ellis H. Parker, Jr., were charged in an indictment with the violation thereof.
The statute, as noted below, provided for punishment of kidnappers by death with two exceptions, viz, “by death if the verdict of the jury shall so recommend,” and “the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed.” 18 U.S.C.A. § 408a.
The indictment alleged the defendants entered into a conspiracy to violate the statute by the kidnapping of one Wendel and during Wendel’s confinement from time to time the said defendants would “assault, beat and exercise means of torture upon the body of the said Paul N. Wendel.”
An alleged overt act stated in the indictment was that the defendants “by means of handcuffs, chains, ropes and straps and from time to time did assault, beat and make use of means of torture in and upon the body of the said Paul N. Wendel.”
It will thus be seen that these allegations charged in the indictment excluded the defendants’ immunity from the death penalty, which immunity existed only “if the kidnapped person has been liberated unharmed.” In other words, the indictment affirmatively charged that the defendants were not entitled to death penalty exemption because the “assaults, beatings and tortures” closed the door of death penalty exemption.
To this indictment the defendants pleaded not guilty and on the issue thus formed the case went to trial.
To my mind the indictment and plea then and there made the issue a capital one and on that issue thus created by the pleadings the case went to trial. What the proofs subsequently were, did not affect the pleaded issue and to my mind the indictment and plea made the charge a capital one. If I am right and the pleaded case was a capital one, it follows the court erred in its subsequent procedural rulings.
Alleging the case was a capital one, the defendants prayed the court to set the case for trial in Burlington County as provided by a statute which said, “The trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience.” Jud.Code, § 40, 28 U.S.C.A. § 101 .
This statute', not only involving life, but also the right of trial in one’s neighborhood, is to be observed in the spirit in which it was passed. It gave a defendant the absolute right of trial where the crime was committed unless such trial “caused great inconvenience.” The burden, therefore, rests on the Government to show such great inconvenience. And this statute applying to capital trials, the proof of great inconvenience must be clear, undoubted and convincing in character. Indeed, the word “great” in this capital statute is so unusual in character that we are referred to no other statute where it is used. The-proof of inconvenience of place in the trial of this case is the ordinary inconvenience occurring in the common run of cases, namely, where witnesses do not live at the place of trial. The only ground here shown by the Government was that many of the witnesses, especially telephone *865 girls, could more conveniently go to Newark than to Burlington County. But such inconvenience, in my judgment, did not measure to the character of inconvenience, namely “great inconvenience”, required by the statute.
The other alleged ground, namely, the bringing to Newark day after day of two witnesses who were in prison in New York, is not the “great inconvenience” contemplated by the statute, since they could have been placed in the jail of Burlington County and detained there as long as their attendance was required. To my mind it is clear that the Government did not prove the “great inconvenience” the statute demanded and the court violated the statute in not ordering the case tried in Burlington County. And in that connection it will be noted the court below made “available superiority” not “great inconvenience” the test, saying: “The superior availability of Newark for the United States witnesses seems to us to be sound ground for the exercise of our admitted discretion. We accordingly exercise it to declare that the government has shown that the exception in the statute, rather than the statute itself, applies. We say the government has shown because in our view the convenience or inconvenience of the defendants is not in issue.”
But another statute, imperative in terms, I feel was not enforced in the trial of the case. That statute provides that “when any person is indicted of treason, a copy of the indictment and a list of the jury, and of the witnesses to be produced on the trial for proving the indictment, stating the place of abode of each juror and witness, shall be delivered to him at least three entire days before he is tried for the same. When any person is indicted of any other capital offense, such copy of the indictment and list of the jurors and witnesses shall be delivered to him at least two entire days before the trial.” 18 U.S.C.A. § 562 .
Assuming I am right, as earlier contended, that the pleadings created a capital case and the subsequent procedural course were in error when the court made its ruling on this statute, eight jurors had been empanelled and selected, when the government served on defendants a list of witnesses it would call. As held in Hopt v. People of Territory of Utah, 110 U.S. 574, 578 , 4 S.Ct. 202, 204 , 28 L.Ed. 262 , followed in Lewis v. United States, 146 U.S. 370, 373 , 13 S.Ct. 136 , 36 L.Ed. 1011 , “the trial commences at least from the time when the work of impaneling the jury begins.”
In the present case no list was furnished in advance of trial and two of such named witnesses, without whose testimony no verdict against these defendants could be sustained, were allowed to testify. Both the letter and spirit of the statute are clear that not only the names but the residences must be given, and this for the manifest purpose of affording the defendants an opportunity to make before trial the inquiry about such witnesses in reference to such matters as materially arise in a criminal case. The failure of the court to afford the protection of these capital statutes to the defendants was reversible error.
So regarding, I respectfully but earnestly file this my dissent.