# Brief for the United States — Gooch v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0324%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1936 - **Citation:** 297 U.S. 124 ## Text te ca ane eee Beat i Sete Serene ei of the Wt Sines wee. _ Octosen ‘Tunw, 1985. "be “* oo \s ¥ . Ties ear oe azemas i ee ~ > ; § ‘ON OBRTIFICATS PRoM rie ‘Oniran ‘grarng ‘OIROUIT.. ugar OF- ARPHALE. 3 F oR Thia TENTH errouIr. — 3 “— o> aia : — » Net mete Na a2 “after 8 FOR THE UNEEED § STATES = P t . e, y PS ys - $7 be *; BY . ~~ — eo’) ms - as zr : — 6 + se sey 3 ~ : : 4 ; ; : . a a - x re 2 ° *% % ¢, é : + : ; < ae ; ~ - PA ea, : : “es SOE ie — —— —" owe a ws 2 > ¢ " se ; ; x sy a : ~ 2 *s . Sia 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- (20) 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.