Brief for the United States — Gooch v. United States

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Opinions below... - .-- -.--- gp cQcbadeccosdonseveubeuesabana

Jurisdiction --.- - -. fo cvddowvendsccodesustestuncsequwabeceuass

Questions pfesented...........!---..-- caneelesusaeemebannes

Statute involyed.". ...-.....----.--.------ oo eenwnwcccccsee

Svmmary of Argument... -...-.--..-------------- Jesecgecee

Argument:

I, The language of the statute manifests a clear legislative

intent that it shall apply to every kidnapihg where

the victim is held for ransom or reward or pecuniary ;

profit or for any other recompense, benefit or advan- d

: tage, except only in the case of a minor kidnaped or

held by the parent thereof........-...-.---------

II. ‘The legislative history of the statute confirms the fore-

SARE SOUS icncew cagedqeneusecenectexesec«

III. Even if the strictest rules of eonstruction be applied, it

is submitted that the kidnaping of an arresting officer

to prevent arrest is a kidnaping “for ransom_or re-

ward or otherwise”, the sub:*antial benefit to the

kidnaper constituting his reward or recompense akin

'

Conclusion shall cind ativubleceane ube adaacamabads a ail nlite

Appendix A. Federal Kidnaping Act as amended-----...-.----

Appendix B. Table of cases construing “otherwise” as “‘differ- .

ently”’ or “contrarily”’: laseieéeseseneuewiubens

.

Cases:

Arnold v. United ‘States, 147 U. S. 494_____- Se eeere es

Ash Sheep Co. v. Unifed States, 252 U. 8. 159... ---------

=.

CITATIONS

‘1. ° Brown v. Maryland, 12 Wheat. 419_-......----- Meisaehiint

Caminztti v. United States, 242 U. 8. 470....-.---\.-----

Church of the Holy Trinity v. United States, 143 U.S. 257_-

Danciger v. Cooley, 248 U. 8. 319........-:-.-.-.-:-..--

Gees VF, Ges © Ps Evececcenuscedcodcesdebatane

Hopkins v. United States, 235 Fed. 95...-..-...---------

Johnson v. Southern Pacific Co., 196 U. 8. 1_-.------ eeatebs

Johnson v. United States, 225 U: 2 Se re

Louisville & Nashville Railroad v. Mottley, 219 U. S. 467__.

(1)

40344—36——-1

Bene eres , | a '

United States v. qo te, U. 8. 94

_ United States v. Hartwell, 6

United States v. Limehouse, 285

United States v. Mescall, 215 U. Bo ccncuseceneecenet

eee ee wm em ee em eee ee

Willis v. Mabon, 48 an. ee

Statutes:

Act of June 22, 1932, c. 271, 47 Stat. 326....-..-.....--

Act of May 18, 1934, c. 301, 48 Stat. sn (18 U. 8. C., Secs.

Fisher and McGuire, Ridnaptes and the So-called Lind-

bergh Law, 12 N. Y. U. L. Q. Rev. 646, 655..........--

75 Cong. Rec.:

Hearings before the Committee on the Judiciary, House of

Representatives, on H. R. 5657, 72d Cong., Ist Sess_-.--

H. Rept 1457, 73d Cong., 2d Sess. (Report of House Com-

mittee on the Judiciary) -........---

S. Rept. 534, 78d Corig., 2d Sess... .... Nl aia a cai

A...” .

8. Rept. 765, 72d Cong., lst Seas......------ 2-2 2s

Inthe Supreme Gourt of the Wnited States

Ocroser TeRM, 1935

No. 55

_ ARTHUR Gooch ve:

oN | y,

THE UNrTev States oF AMERICA

ON CERTIFICATE FROM THE UNITED STATES CIRCUIT

COURT OF APPEALS FOR THE TENTH. CIRCUIT .

BRIEF FOR THE UNITED STATES

| OPINIONS BELOW

No opinion was rendered by the District Court

and none has been rendered by the Circuit Court

_ of Appeals. — | :

| |... @URISDICTION

The certificate of the Circuit Court of Appeals

was filed in this Court on October 29, 1935. The

jurisdiction of this Court is conferred by Section

'239 of the Judicial Code as amended by the Act of .

February 13, 1925. = :

QUESTIONS PRESENTED

The questions certified are the following: _

1. Is holding an officér to avoid arrest within the

- meaning of the phrase, “‘held for ransom or reward _

he (t)

g* § ’

or othe ? in the act of June 22, 1932, as

amend ay 18, 1934 (48 St. ber 18 U. 8. C. A.

408 at

_; . 2 Is it an offense under Section 408a, supra, to

kidnap and transport a person in interstate com-

-\ merce for the purpose of preventing the arrest of

"the kidnaper ?

oe STATUTE INVOLVED

The Act of June 22, 1932, c. 271, Sec. 1, as

v@mended May 18, 1934, ¢. 301, 48 Stat. 781 (18

U..S. C., Sec. 408a), the so-called Federal Kidnap-

' . ing Act, so far as here involved reads as follows:

Whoever shall knowingly. transport or

cause to be transported, or aid or abet in

merce, any person who shall have been un-

lawfully seized, confined, inveigled, decoyed,

kidnaped, abducted, or carried away by any

means whatsoever and’ held for ransom or

_ reward or otherwise, except, in the case of.

a minor, by a parent thereof, shall, upon

conviction, be punished (1) by death if the

. verdict of the jury shall so recommend, pro-

vided that the seritence of death shall not be

imposed by the court if, prior to’ its imposi-

tion, the kidnaped person has been liberated _

unharmed, or (2) if the death penalty shall ,

not apply nor be imposed the convicted per-

son shall be ‘punished by imprisonment in °

the penitentiary for such term of years as

the court in its discretion shall determine:

Provided, That the failure to release such

person within seven days after he shall have

transporting, in interstate or foreign com- ¢

7 a

* * been unlawfully seized, confined, inveigled,

decoyed, kidnaped, abducted, or carried away

shall create a presumption that such person

has been transported in interstate or foreign

commerce,’ but’ such presumption shall not

be conclusive. (Italics supplied.)

The italicized words were not in the original Act

. of 1932 but were among tlie amendments added by.

. “the 1934 Act. The original Federal Kidnaping

_ Act of 1932 and the amending Act of 1934 are

printed in the Appendix, infra, ‘p. - 20. ;

_ STATEMENT

‘The facts as set forth in. the certificate are as

‘follows:

‘Gooch was convicted and sentenced to be tistiged

under an indfctment charging that he, with one —

Nix, kidnaped_two officers at Paris, Texas,: ‘for -

the purpose of preventing his (Gooch’s) arrest by.

the said peace officers in the State of Texas”’, and

_.transported them in interstate commerce from

Paris, Texas, to Pushmataha County, Oklahoma,

and at the time of the kidnaping.did bodily harm

and injury to one of the officers, from which bodily

harm the officer was suffering at the time df his |

liberation by Gooch and Nix in-Oklahoma,.__

The proor supports the charge. It established

these facts: Gooch and Nix, while’ heavily armed,

‘were accosted by the officers at Paris, Texas. To

avoid arrest, Gooch and Nix resisted arid disarmed

thesofficers, unlawfully seized and kidnaped them

and transported them by automobile from Texas

q

4

~ to Oklahoma, an¢ iiverated them in the latter State.

. During the time Gooch and Nix were kidnaping the |

officers ‘they inflicted serious bodily injury upon

’ one of the officers, from which injury he was suf-

fering at the time of such cine in the State

of Oklahoma,

SUMMARY OF ARGUMENT

The language of the statute requires an affirma-

tive answer to the questions certified. The phrase

“‘held for ransom, or reward’’ was amended two

years after the evactment of the statute by the

~~ addition of the phrkse ‘‘or otherwise, except, in the

ease of a minor, \by a parent thereof.”’ The

amended language indicates an intention to include

eases of kidnaping and detention not only for pe-

cuniary gain but for other benefit or advantage.

The word ‘‘otherwise” carries the meaning of dis-

similarity, and hence precludes any narrow applica-

tion of the rule of ejusdem generis. ——

courts have so held in construing the words ‘

otherwise.’’ The specific exception in the case of

the kidnaping of a minor child by its parent shows

that such cases would be within the scope of the

statute were it not for the exception.

The legislative history of the statute confirms its

construction as including cases of kidnaping to pre-

vent arrest. When originally introduced in 1932

the bill contained the phrase “held for ransom or ~

reward, or held. for any other unlawful purpose.”’

The latter part of this. phrase was stricken out be-

ein Sate es ANN Sie

eS en ee Rn ees

-eause of reluctance to include cases of kidnaping of

a child by its parent. T'wo years later ‘the statute

was broadened to its present form, indicating an

intention to revert to the scope of the original bill,

while making provisien for excepting the kind of

ease which Congress had been unwilling to include.

The Committee Reports reinforce this conclusion.

The rule of ejusdem generis will not .be narrowly

applied where such application would defeat the

meaning of the statute as shown by its language

and its legislative history. But even if the strict-

est rules of construction are applied, it is submitted

that the kidnaping of an arresting officer to prevent: _

arrest: is a kidnaping ‘‘for ransom or reward or

otherwise’’,. the substantial benefit to the kidnaper

constituting his reward or recompense akin hereto.

ARGUMENT

I

“THE LANGUAGE OF THE STATUTE MANIFESTS A CLEAR,

LEGISLATIVE INTENT THAT IT SHALL APPLY TO EVERY

KIDNAPING WHERE THE VICTIM IS HELD FOR RANSOM

OR REWARBOR PECUNIARY PROFIT OR FOR ANY OTHER

RECOMPENSE, BENEFIT OR ADVANTAGE, EXCEPT ONLY

IN THE CASE OF A MINOR KIDN APED OR HELD BY THE

PARENT THEREOF

Both questions certified raise solely an issue of

statutory construction, the second question in more

general terms than the first. That issue is whether

kidnaping and detention for the purpose of pre-

6

venting arrest is included within the statute as

amended. Specifically the issue involves the scope

of the amendatory phrase ‘‘or otherwise, except, in. -

the case of a minor, by a parent thereof”’, which .

was added, after an interval of two years, to the

phrase “held for ransom or reward.”’ .

. The appellant has contended that the statute

must be construed as applying only where the pur-

pose of the kidnaping and detention is to secure

some pecuniary gain; he contends for a strict con-

struction of the statute and for an extreme applica-

tion of the rule of ejusdem generis. The Govern-

ment in the case at bar does not maintain that the

amendatory ‘language of the statute must be con-

strued to include every class or sind of kidnaping

where interstate commerce is involved. It is un-

necessary in the case at bar to urge so broad a con-

- struction. The Government maintains that in any,

event the statute must be construed to apply to kid-

naping and detention for the purpose of securing

any: recompense, benefit or advantage, whether

pecuniary or not. No narrower construction, it is

submitted, is consonant with the language of the

Act as amended; its legislative history and the pur-

poses for which it was enacted.

As amended, the Act specifies what is probably

the most common motive actuating the crime of

-kidnaping, namely, ransom or reward, and adds »

the words set forth above. The phrase ‘‘or other-

wise’’ was aptly chosen to include the various types

7°

of other personal advantage without enumerating

them specifically. The phrase ‘‘or otherwise,’’ it

should be noted, carries a distinctly-stronger con-

notatign than such phrases as,‘‘or other purpose”’.

The former carries the connotation of additional

and dissimilar ; the latter, of additional and similar.

The word ‘‘otherwise’’ is defined in Webster’s In-

ternational Dictionary as ‘‘in a different manner ;

in another way, or in other ways; contrarily.”’

"This meaning has been recognized in numerous de-

cisions which regard the phrase ‘‘or otherwise’’ as

precluding any narrow application of the rule of

ejusdem generis. A collection of such decisions is

printed in the Appendix, infra, pp. 22-25.

Since the meaning of the amendatory phrase ‘‘or

otherwise”’ carries the concept of dissimilarity, its

force would be practically lost if it were confined

to cases of pecuniary gain. Ifthe preceding phrase, _

“ransom or reward,’’ suggests the category of pe-

cuniary benefit, the phrase ‘‘or otherwise’ must be

at least broad enough to include other kinds of

benefit or advantage. :

The construction contended for by the Govern-

‘ment is compelled; we submit, by the express in-

clusion of an exception in the statute; namely, the

case of the kidnaping of a minor chikd by its parent.

Manifestly it was the intention of Congress that

such cases would be embraced within the language

of the Act unless specific exception for them were

made. The ordinary motive in such kidnapings is

40344—36——-2

> 8

the desire to secure the custody of. the child from .

the other.spouse. In such cases:the motive is not. ~

_pecuniary, but is instead the enjoyment of the cus- |

tody, society and care of the child. The construc-

tion urged by the appellant ignores the significance

of this exception. |

The effect of a specific exception in a statute has

frequently been noted by this Court. As was said

in Brown v. Maryland, 12 Wheat: 419, 438, ‘‘the

exception of a particular thing from general words,

proves that, in the opinion of the law-giver, the

thing excepted would be within the general clause,

had the exception not been made.’’ See also Gib-

~ bons v. Ogden, 9 Wheat. 1, 191; Arnold v. United.

States, 147 U. 8. 494, 499; Hopkins v. United

States, 235 Fed. 95, 98 (CO: ©. A. 8th).

The fact that the’ statute is penal in. character

and is, therefore, to be strictly construed does not

militate against the construction for which the Gov-

ernment contends. The rule of strict construction

is not violated by allowing words to have their

full meaning where such construction best harmon-

izes with the context and gives effect to the inten-

tion of the legislature. See Ash Sheep Co. v.

United States, 252 U. 8. 159, 170; United States v.

Bowman, 260 U. S..94, 102; Johnson v. Southern

Pacific Co., 196 U. 8.1, 17. The applicable prin-

ciple was succinctly stated by this Court in Umted

States v. Hartwell, 6 Wall. 385, 395:

We are not unmindful that penal laws are

’ to be construed strictly. It is said that this

- Sey Sa

Peet me a oA em ie ak a a i OIE SEO SO BID NES SECT FS Ae

\

9

rule is almost as old as construction itself. |

But whenever invoked it comes attended

- with qualifications and other rules no less

important. * * * The proper course in

all cases is to adopt that sense of the words

which best harmonizes with the context, and

promotes in the fullest manner the policy

and objects of the legislature. The rule of

strict construction is not violated by permit-~

ting the words of the statute to have their —

full meaning, or the more extended of two

meanings, as the wider popular instead of

the more narrow technical one ; but the words ~

should be taken in-guch a sense, bent neither

one way nor the other, as will best manifes

the legislative intent. |

It is as true of penal statutes as of those in deroga-

tion of the common law that while they ‘‘are to be

construed strictly, ‘they are also to be construed

sensibly, and with a view to the object aimed at by

the legislature.’ ’’ Johnson v. Southern Pacific Co.,

supra, at. 17. :

II

THE LEGISLATIVE HISTORY OF THE STATUTE CONFIRMS

_ THE FOREGOING CONSTRUCTION

The Act of June 22, 1932, c. 271, Sec. 1, 47 Stat.

326, contained simply the phrase “held for ransom

or reward.’’ That Act incorporated the provisions

of the Senate bill, S. 1525, 72d Cong., 1st Sess., as

reported by the Senate Committee on the J udiciary.

‘See Senate Report 765, 72d Cong., Ist Sess. It is

+

10

_ significant, however, that as originally introduced

in the Senate the bill contained the phrase “* held

for’ransoni or reward; or held for any other unlaw-

fal purpose.”? Jbid. The excision of the latter ”

words was accepted by the Senate without discus- |

sion. . 75 Cong. Ree., p. 12318.

In the House,-on the other hand, the debates

throw light upon the scope of the bill as originally |

introduced and the reasons for its change as finally

enacted. The Committee on the Judiciary in the .

House reported the Senate bill as a substitute for

the House bill. 75 Cong. Rec., pp. 13282, 13287.

But the original House bill, which was substantially

identical with the original Senate bill as introduced,.

was brought forward as a proposed amendment to

the bill reported by the Committee. Idem, 13294.

This amendment included the phrase ‘‘ or held for

~ any other unlawful purpose.”’ The debate on this

amendment elicited opposition to it on the ground

- that it would include cases of kidnaping of a child

by the parent, which certain members regarded as

of'a distinctly less heinous character than other

elasses of unlawful kidnaping. Idem, 13296, . In

- addition to such cases, the phrase in question would

have included, as stated by the author of the bill,

Mr. Cochran, cases of the abduction of a witness

and transportation across a State line, in order to

prevent his appearance in court. The amendment

was finally rejected. Ibid. Thereupon, in order °

to broaden:the scope of the reported bill in a some-

1]

what less degree, it-was proposed that the language

be amended to read “‘ ransom, reward or revenge ”’.

This proposal was objected to on the ground that it

introduced impractical difficulties of proof; and op-. |

ponents of the, broader version conceded that, the

new proposal was on that account more objection-

able than the former. It also was rejected. Idem,

_ 13298. The bill as passed by the Senate was there-

after adopted by the House. Idem, 13304.

The history of the original Aet thus discloses an

inggntion on tlfe part of Congress to cope-with the

common class of kidnapings, a proposal to deal

with all interstate kidnapings, and a reluctance to

include the case of kidnaping of a child by its

parent. The only middle ground suggested was

rejected because it introduced difficulties pf proof.

The enactment of the original Act was a recog’

nition that kidnaping in latter years had assumed

the proportions of a highly organized industry op-

erating without regard to State boundaries. See

Hearings before the Committee on the Judiciary,

House of Representatives, on H. R. 5657, 72d

Cong., Ist Sess.; and for a discussion of the condi-

tions leading up to the enactment of the statute

see Fisher and McGuire, Kidnaping and the So-

called Lindbergh Law, 12 N. Y. U. Law Q. Rev.

646-655. The ‘Report of the Senate Committee,

No. 765, 72d Cong., Ist sess., stated the purpose of

the legislation to be the following:

The purpose of this proposed legislation

is to assist the States in stamping out the

4

12

growing menace of kiduaping. Kidnapers

often seize a person in one State and trans-

port him into another State. The police

officers of the first State have no authority

to follow into the second State but are.com-

pelled to rely wholly on the efforts of the

police officers of the second State. ™

After the Act had been in effect for two years

the words in question in the case at bar were added.

Act. of May 18, 1934, c. 301, 48 Stat. 781. The

scope of thé amended language is indicated by the

debates on the original Act. It is obvious that’

after an interval of two years Congress reverted to

the scope of the bills as originally introduced in

1932, with provision, however, for the type of case

which impelled a rejection of the language of those

bills in the first instance. That is, Congress de-

termined that the law should no longer be limited to

eases of kidnaping for ransom or reward. The

words adopted to accomplish this purpose were >

doubtless chosen with a view to economy of lan-

guage and mechanical ease of amendment.

The Committee Reports disclose the scope and

purpose of the amendatory language adopted in

1934. The Report of the House Committee on the

Judiciary stated @. Rep. 1457, 73d sities 2a

Sess.) :

First, it is proposed to add the words ‘‘or

otherwise, except, in the case of a minor, by

a parent thereof”. This will extend Federal

jurisdiction under the act to persons who

13

have been kidnaped-and held, not only for

_ reward, but for any other reason, except that.

a kidnaping by a parent of his child is specifi-

> cally exempted. —

The Report of the Senate oe on n the Ju-

diciary (S. Rep. 534, 73d Cong., 2d Sess.) stated:

The object of the addition of the word

_ “otherwise’’ is to extend the jurisdiction of

this act to persons who have been kidnaped

and held, not only | for reward, but for any

other reason.

The conclusion is inescapable from the legisla-

tive history.that the statute as amended includes

every kidnaping involving interstate transporta-

tion where the victim is held for any recompense,.

benefit or advantage, except in the case of the kid-

naping of a minor child by its parent.. The fact

that the language in question was deliberately

added by amendment after the Act had been in op-

eration repels any suggestion that the arnendatory

language must be construed in the narrow way

urged by the appellant. A similarly narrow con-

struction was rejected by this Court in United

States v. Limehouse, 285 U. 8. 424, 426, on the

ground twat such a.construction ‘‘emptied the

amendment of all meaning’, See also Louisville

& Nashville Railroad v. Mottley, 219 U. S. 467,

475; Johnson v. United States, 225 U. S. 405, 415.

The history of the amendatory statute compels

the conclusion that a substantially broader cate-

gory was meant to be embraced than had been in-

cluded. in the original Act; and the specification of

the exception which had prevented the earlier

adoption of the broad language reenforces this con-

clusion. In United States v. Bitty, 208 U. S. 393,

401, this Court said:

Now the addition in the last rene of the

words, ‘‘or for any other immoral purpose,”’

after the word “‘prostitution,’”?. must have

been made for some practical object. Those

_ added words show beyond question that Con-

gress had. in view the protection of society -

against another class of alien women other

than those who might be brought here ©

merely for purposes of ‘‘prastitution.’’ In

forbidding the importation of alien women

“for any other immoral purpose,’’ Congress

| evidently thought that there were purposes’

in connection with the importations of alien

women which, as in the case of importa-

_ tions for prostitution, were to be deemed

immoral. * * *

' Where the intention of the ee is thus ap-

parent from the Act as a whole and its legislative

“history, the rule of ejusdem generis will not be ap-

_ plied to reach a contrary result. This Court has

pointed out that the rule of ejusdem generis is one

of construction to aid in ascertaining the intent of

the law makers, not to defeat or subvert it: United

States v. Mescall, 215 U. 8. 26,31; Danciger v.

Cooley, 248 U. 8. 319, 326; Mason v. United €8, .

260 U. S. 545, 554; Mid-Northern Co. v. Montana,

268 U. 8. 45, 49; Texas v. United States, 292 U. 8.

\

ate 1

135

522, 534. See also Wiltis v. Maben, 48 Minn. 140, _

156, per Mitchell, J. These priticiples will be ap-

plied in criminal as well as civil cases. Of. People

“y. Miles, 143 N. Y. 383, and cases cited in Appendix

B, infra, pp. 22-25, in- which the courts have

declined to apply the rule of ejusdem generis in

construing the word ‘‘otherwise.”’ ° .

It is unnecessary in the case at bar to give

dominant effect to either the language of the

statute alone or to the legislative history alone.

Compare Caminetti v. United States, 242 U.S.

470, with Church oj the Holy Trinity v. United

States, 143 U. S. 457. In the ease at. bar the

language of the statute and ‘the legislative his-

tory alike point to the conclusion that the amenda-

tory language cannot be limited to eases of kidnap-

ing for pecuniary gain but must include eases of

kidnaping for other advantages such as the preven-

tion of arrest. .

III

EVEN IF THE STRICTEST RULES OF CONSTRUCTION BE

APPLIED, IT 18 SUBMITTED THAT THE KIDNAPING OF

AN ARRESTING OFFICER TO PREVENT ARREST IS A KID-

NAPING ‘‘FOR RANSOM OR REWARD OR OTHERWISE”’,

HE SUBSTANTIAL BENEFIT TO THE KIDNAPER CON-

STITUTING HIS REWARD OR RECOMPENSE AKIN

THERETO

_In their brief in the Cireuit Court of Appeals,

counsel for the appellant argued that the words

‘‘or otherwise” added to ‘ransom or reward” were

intended to embrace those kidnapings where the

motive. was “extortion, blackmail, robbery or

16

sale’’—in other words, pecuniary gain. But it

is not clear why “‘reward”’ should be thus restricted

in meaning. Reward is defined by Webster as

‘‘that which is given in ,eturn for good or evil done

or received ; esp., that which is offered or given for -

some service or attainment, as a prize for excel-

lence in studies, a sum of money for the return

of something lost or for the capture of a criminal,

etc.; recompense; requital.’? What of the cases

where the victim is kidnaped in order to prevent

him from prosecuting his abductor, or testifying

against “him in court, or in order to compel him

to any course of conduct detrimental to him and -

beneficial to his kidnaper? Is the cash reward in

a kidnaping for blackmail or robbery a recompense

or benefit of different legal significance from any

other benefit or advantage to secure which the kid- Va

naping may be perpetrated ?__

In United States v. Bitty, 208 U. S. 393, the

defendant was charged under a statute which pro-

hibited the importation into the United States of

any woman or girl for the purpose of prostitution

or for any other immoral purpose. The defendant

brought the woman in question into the United

States for the purpose of concubinage and not pros-

titution. This.Court held that the phrase ‘‘or for

any other immoral purpose’’, which was added to

the original statute by subsequent Act, enlarged the

class of prostitution to make it include an immoral

purpose such as concubinage. The Court said

(p. 402):

17

It may be.admitted that in accordance with

the familiar rule of ejusdem generis, the im-

moral purpose referred to by the words ‘“fany

other immoral purpose,’’ must, be one of the

same general class or kind as the particular

purpose of ‘‘prostitution’’ specified in the

same clause of the statute. 2 Lewis’ Sun- _

derland Stat. Const., Sec. 423, and authorities »

cited. But that rule cannot avail the ac-

cused in this case; for, the immoral purpose

charged in the indictment i is of the same gen-

eral class or kind as the one that controls in

the importation of an alien woman for the

purpose strictly of prostitution. The pros-

titute may, in the popular sense, be more de-

graded in character than the concubine, but

the latter none the less must be held to lead

an immoral life. * * * Chief Justice

Marshall, speaking for the court, said. that

“‘though penal laws are to be construed

strictly, they are not to be construed so ©

strictly as to defeat the obvious intention of

the legislature. The maxim is not to-be so

_ applied as to narrow the words of the statute

to the exclusion of cases which those words,

in their ordinary acceptation, or in that

sense in which the legislature has obviously

used them; would comprehend. * * * |

- In Caminetti v. United States, 242 U.S. 470, the

defendant was convicted under the White Slave Act

for transporting a woman in interstate commerce

for the purpose of becoming his concubine or mis-

tress. _Defendant contended that such act did not |

violate the statute which prohibits the transporta-

wt

— > ie -- _—

18

tion of a woman or girl in interstate commerce for

the purpose of prostitution or debauchery or for

any other immoral purpose. This Court held that

the charge against the defendant was within the

purview of the statute.

From these holdings of this Court, it appears that

even if the phrase “‘or otherwise’’ is restricted to

mean “‘6r like purposes’’, it nevertheless enlarges

the originall kidnaping Act and is kwoad enough to

include kidnaping and holding for the purpose of

securing the benefit of preventing arrest.

Nor is the case of United States v. Sheldon, 2

Wheat. 118, relied upon by appellant, authority for

such a construction of the word ‘‘otherwise’’ as

would justify a negative answer to the questions

certified. That case held that the driving of cattle

on foot was not within the statutory words ‘‘shall

transport, or attempt to transport, overland or

otherwise, in any wagon, cart, sleigh, boat or other-

wise.’’ The decision in that case turned on the defi-

nition of ‘“‘transport’’, and not on the definition of

‘otherwise’. Whatever may be the soundness of

that decision, it is no precedent for a construction -

of the word ‘‘otherwise’’ that would so narrow its _

sense as to deprive the statute of the meaning in-

tended by Congress, as shown by the language of

the Act as a whole and its legislative history.

CONCLUSION

We submit that the language of the statute, its

legislative history, and the applicable rules’ of

Le pemeslitshs —— |

Winn Weel tok Prot ad deb ceabichstemilh ieee Sie

19

statutory construction require that the Federal

Kidnaping Act be construed to include all cases of

kidnaping where the victims are held not only for

ransom or reward but for other recompense, bene-

fit or advantage whether pecuniary or otherwise,

except only in the ease of a minor by the parent

thereof ; and that both questions should be answered

in the affirmative.

' Respectfully submitted.

/ STANLEY REED,

| Solicitor General.

JOSEPH B. KEENAN,

Assistant Attorney General.

« Wintram W. Barron,

. Attorney.

/ GORDON DEAN,

Special Attorney.

JANUARY, 1936.

APPENDIX A

The Federal Kidnaping Act of June 22, 1932,

¢. 271, 47 Stat. 326, provides as follows:

That whoever shall knowingly transport

or cause to be transported, or aid or abet in

transporting, in interstate or foreign com-

merce, any person who shall have been un-

lawfully seized, confined, inveigled, decoyed,

kidnaped, abducted, or carried away by any

means whatsoever and held for ransom or

reward Shall, upon conviction, be punished

by imprisonment in the penitentiary for such

term of years as the court, in its discretion,

shall determine: Provided, That the term

‘interstate or foreign commerce” shall in-

clude transportation from one State, Terri-

tory, or the District of Columbia to another

State, Territory, or the District of Columbia,

or to a foreign country; or from a foreign

country to any State, Territory, or the Dis-

trict of Columbia: Provided further, That if

two or more persons enter into an agree-

ment, confederation, or conspiracy to violate

the provisions of the foregoing Act and do

any overt act toward carrying out such un-

lawful agreement, confederation, or con-

spiracy such person or persons shall be pun-

ished in like manner as hereinbefore pro-

vided by this Act.

This Act was amended by the Act of May 18, 1934,

ce. 301, 48 Stat. 781, as follows:

| 5

That the Act of June 22, 1932 (U.S. C.,

ch. 271, title 18, sec. 408a), be, and the same is

hereby, amended to read as follows:

Whoever shall knowingly transport or

cause to be transported, or aid. or abet in

transporting, in interstate or foreign com-

merce, any person who shall have been un-

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21

lawfully seized, confined, inveigled, decoyed,

kidnaped, abducted, or carried away by any

means whatsoever and held for ransom.or

reward or otherwise, except, in the case of -

a minor, by a parent thereof, shall, upon con-

viction, be punished (1) by death if the

verdict of the jury shall so recommend, pro-

vided that the sentence of death shall not

be imposed by the court if, prior to its im-

position, the kidnaped person has been lib-

erated unharmed, or (2) if the death pen-

alty shall not apply nor be imposed the con-

victed person shall be punished by imprison-

ment in the penitentiary for such term of

years as the court in its discretion shall de-

termine: Provided, That the failure to re-

lease such person within seven days after

he shall have been unlawfully seized, con-

fined, inveigled, decoyed, kidnaped, ab-

ducted, or carried away shall create a pre-

' sumption ‘that such person has been trans-

ported in interstate or foreign commerce,

but such presumption shall not be con-

chusive. os ae g .

Sec. 2. The term ‘‘interstate or foreign

commerce’’, as used herein, shall include

transportation from one State, Territory, or

the District of Columbia to another, State,

Territory, or the District of Columbia, or

to a foreign country, or from a foreign coun-

try to any State, Territory, or the District

of Columbia. | ee

Sec. 3. If two or more persons enter into

an agreement, confederation, or conspiracy

. to violate the provisions of the foregoing

Act and do any overt act toward carrying

out such unlawful agreement, confedera-

tion, or conspiracy, such person or persons

shall be punished in like manner as herein-

before provided by this Act. ;

(18 U.S. C., Sees. 408a, 408b, 408c.)

APPENDIX. B

Many courts recognizing the rule of ejusdem gen-

eris have nevertheless construed ‘‘otherwise’’ as

meaning ‘‘contrarily’’, ‘‘differently’’, or ‘‘in an-

other or different manner’’. Some of these deci-

sions are listed below. a ar

United States Supreme Court:

Burlington & M. R. R. Co. v. Fremont, 9

Wall. 89, 94.

Collector v. Hubbard, 12 Wall. 1, 18.

State of Wisconsin v. Lane, 245 U.S. 427,

434.

Federal:

United States v. “Bettilini, 24 Fed. Cas. No.

14587, pp. 1135, 1136 (C. C. N. D. Fla.).

Franklin Sugar Refining Co. v. United.

States, 137 Fed. 655, 658 (C. C. E. D. Pa.).

Cramer v. United States, 276 Fed. 78, 79-81

(C. C. A. 9th).

Arkansas:

Matthews v. Kindo, 70 Ark. 451, 462.

California:

~ Daniels v. Gualala Mill Co., T7 Cal. 300, 303.

Contra Costa Water Co. v. Breed, 139 Cal.

432,441. |

Connecticut:

Sheehy v. Barry, 87 Conn. 656, 662.

Georgia:

Carter v. Johnson, 156 vind 207, 919.

Illinois:

Carpenter v. Mitchell, 54 Til. 126, 131.

Thompson v. City of H none Park, 187 Ill.

265, 268.

(22)

taht Fb oh oe

4

;

¢

2

23 ° .

Iowa:

McClamahan v. McClanahan, 129 da. 411.

Kansas:

American State Bank v. Wilson, 110 Kan.

520, 529.

_Louisiana :

Sibley v. Pierson, 125 La. 478, 511.

Michigan:

Higler v. People, 44 Mich, 299, 300,

Radley v. Seider, 99 Mich. 431, 433.

Spencer v. Johnson, 185 Mich. 85, 88; 89. <i,

Minnesota:

Smuth v. Library Board of City of Minne-

apolis, 58 Minn. 108, 110.

Missouri:

Lynch v. Murphy, 119 Mo. 163, 167.

Webb v..Mo. State Life Ins. Co. 134 Mo.

App. 576, 579-580.

Nebraska:

State v. Dennison, 60 Neb. 157, 162.

New Hampshire:

Backus v. Lebanon, 11 N. H. 19, oT.

Attorney General v. Taggart, 66 N. H. 362,

364,

New Jersey:

Black.v. Delaware & R. Canal Co., 22 N. J.

Kq.: (7 C. E. eae 130, 393, 400.

New Mexico:

Curran Vv. oe a 12 N. M. 254, 273.

¢

24

New York:

New York State Loan & Trust Co.v. Helmer,

77 N. Y. 64, 67.

People v. Greenwall, 115 N. Y. 520, 523.

People v. Miles, 143 N. Y. 383, 389,

- People v. Pati, 208 N. Y. 176, 178.

‘ Carpenter v, Romer & Tremper Steamboat

Co., 48 App. Div. 363, 370. |

People v. Feitner, 71 App. Div. 479, 481, 482.

In re Perry’s Will, 126 Misc. Rep. 616.

North Carolina:

State v. Shade, 115 N. C. 757, 759.

North Dakota:

Bank of Park River v. Town of siete 14

N. D. 143, 146..

Ohio: 7

State v. Kelly, 32 Ohio St. 421, 429.

Nagle v. Brown, 37 Ohio St., 7, 10.

Ashland Bank & Savings Co. v. Houseman,

5 Ohio App. 165, 175.

~ Pennsylvania:

— Commonwealth v. Dichert, 195 Pa, 234, 240.

McCune v. Berrny, 237 Pa. 572, 579.

Rhode. Island:

Malafronte v. Miloni, 35 R. 1. 225, 227.

South Carolina:

| Davis v. Milady, 92 S. C. 135, 142, 143.

Texas:

Kentucky Oil Corp. v. David (Tex.), 285

S. W. 290, 292. |

25

West Virginia:

Trough v. Trough, 59 W. Va. 464, 474, 115

Am. St. Rep. 940, 8 Ann. Cas. 827.

~ Gauley Coal Land Co. v. Koontz, 77 W. Va.

583, 585.

Wisconsin:

McCaffrey v. Town of Shields, 54 Wis. 645.

Wyoming:

State v. Scott, 35 Wyo. 108, 141-145,

U.S. GOVERNMENT PRINTING OFFICE: 1936