State v. Clark

TACKETT, J. (dissenting).

The defendant, was convicted in the lower court by a jury of his peers as a result of the evidence and under the instructions of the law of the case and without doubt the jury found the element of intent, which is necessary under our kidnapping statute.

I am unable to concur in the majority opinion as, in my view, the wrong construction has been placed on the kidnapping statute in the interpretation in the majority opinion. Section 40A-4—1, N.M.S.A., 1953 Comp., reads as follows:

“Kidnaping is the unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim be held for ransom, as a hostage, confined against his will, or to be held to service against the victim’s will.”

The majority interprets this statute to the effect that in a kidnapping case the victim must be held for ransom, or as a hostage, or held to service against the victim’s will. It is my considered opinion that kidnapping can occur in instances where the victim is not held for ransom, or as a hostage, but instead is held to service against his will. The majority does apparently admit that a kidnapping can occur in this manner, but does not agree that the facts here present constitute kidnapping.

In my view, all of the necessary elements of kidnapping are present in the case before us: (1) There was an unlawful taking (she was moved under force from the point where she was first accosted to another place); (2) she was restrained against her will; (3) force was used (a knife at her throat) ; (4) she was made to serve against her will (the defendant indicated a car nearby and told complainant to get in; he moved her toward the car and, at this point, she managed to escape).

Just how the majority can arrive at the conclusion that these facts do not constitute kidnapping under our statute is difficult to believe. Perhaps the majority would prefer to have the situation become more aggravated at the peril of the victim before they could find kidnapping.

In State v. Ayers, 198 Kan. 467 , 426 P.2d 21 (1967), it is said:

“ * * *. ‘\IC\idnap’ means to take and carry away any person by unlawful force or fraud and against his will. We attached no other requirements such as a minimum distance of asportation. It is the fact, not the distance, of forcible removal of the victim that constitutes kidnapping. 1 Am.Jur.2d, Abduction and Kidnapping, § 18, p. 172. See, also, People v. Wein, 50 Cal.2d 383 , 326 P.2d 457 , cert. den. 358 U.S. 866 , 79 S.Ct. 98 , 3 L.Ed.2d 99 , reh. den. 358 U.S. 896 , 79 S.Ct. 153 , 3 L.Ed.2d 122 (any distance sufficient); People v. Loignon, 160 Cal.App.2d 412 , 325 P.2d 541 (opening door of automobile and pulling child into car); People v. Oganesoff, 81 Cal.App.2d 709 , 184 P.2d 953 (forcibly carrying victim from automobile into defendant’s house).

“In 51 C.J.S. Kidnapping § 1(8), p. 438, the rule is stated:

‘Where the gravamen of the crime is the carrying away of the person, the place from or to which the person is transported is not material, and an actual asportation of the victim is sufficient to constitute the offense without regard to the extent or degree of such movement. * * *

See also, State v. Lowry, 263 N.C. 536 , 139 S.E.2d 870 (1965); and State v. Lacoshus, 96 N.H. 76 , 70 A.2d 203 (1950).

I do not have any difficulty with the identification question under the circumstances of this case, as the complainant identified the defendant from mug shots shown to her the next morning after the ■offense was committed and also identified him in the courtroom.

In my opinion, the decision of the Court •of Appeals should be affirmed. Therefore, I respectfully dissent.

COMPTON, J., concurs.