STATE of North Carolina
v.
Marcellus MURPHY.
No. 18.
Supreme Court of North Carolina.
December 15, 1971.*847 Bethea, Robinson & Moore by Norwood E. Robinson, Reidsville, for defendant appellant.
Robert Morgan, Atty. Gen., William W. Melvin and T. Buie Costen, Asst. Attys. Gen., for the State of North Carolina.
HUSKINS, Justice:
Defendant's sole assignment of error is based on denial of his motion for judgment of nonsuit. He contends that the evidence, taken as true and considered in the light most favorable to the State, fails to make out a case of kidnapping. We now examine the validity of this contention.
G.S. § 14-39 provides in pertinent part: "It shall be unlawful for any person * * * to kidnap * * * any human being. * * * Any person * * violating * * * any provisions of this section shall be guilty of a felony, and upon conviction therefor, shall be punishable by imprisonment for life." Since this statute does not define kidnapping, the common law definition of that crime is the law of this State. G.S. § 4-1. The common law definition of kidnapping is "the unlawful taking and carrying away of a person by force and against his will." State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965). Any carrying away is sufficient. "The distance the victim is carried is immaterial." State v. Ingland, 278 N.C. 42, 178 S.E.2d 577 (1971); State v. Lowry, supra.
Under the pristine law of kidnapping, actual physical force was contemplated to accomplish the crimefraud was not considered. However, in the last century this and other courts have progressively recognized that one's will may be coerced as effectually by fraud as by force. Accordingly, this Court has interpreted the common law definition of kidnapping to encompass not only the unlawful taking and carrying away of a person by force but also the unlawful taking and carrying away of a person by false and fraudulent representations amounting substantially to a coercion of the will. In State v. Harrison, 145 N.C. 408, 59 S.E. 867 (1907), the Court approved the trial judge's instruction that, "By kidnapping is meant the taking and carrying away of a person, forcibly or fraudulently." Thus fraud has become synonymous with force in the common law definition of kidnapping, and the equation of fraud with force has been accepted in the legal encyclopedias and approved in numerous jurisdictions. Kent v. Commonwealth, 165 Va. *848 840, 183 S.E. 177 (1936); People v. Siegal, 362 Ill. 389, 200 N.E. 72 (1935); People v. DeLeon, 109 N.Y. 226, 16 N.E. 46 (1888); United States v. McGrady (C.A. 7, 1951), 191 F.2d 829, cert. den., Paulding v. United States, 342 U.S. 911, 72 S. Ct. 305, 96 L. Ed. 681 (1952); State v. Brown, 181 Kan. 375, 312 P.2d 832 (1957); Moody v. People, 20 Ill. 315 (1858); White v. State, 244 Ind. 199, 191 N.E.2d 486 (1963); Sutton v. State, 122 Ga. 158, 50 S.E. 60 (1905); State v. Walker, 139 Mont. 276, 362 P.2d 548 (1961); State v. Witherington, 226 N. C. 211, 37 S.E.2d 497 (1946). See 1 Am. Jur.2d, Abduction and Kidnapping, § 13; Annot., Kidnapping by fraud or false pretenses, 95 A.L.R. 2d 450.
The principle involved in kidnapping by fraud is fully and clearly expressed in the following quotation from 24 Cyc., 798, 799, contained in State v. Gough, 257 N.C. 348, 126 S.E.2d 118 (1962):
"To constitute the offense of kidnapping, it is not necessary that actual physical force or violence should have been employed, and this was true even at common law. It is essential only that the taking or detention should be against the will of the person kidnapped. Falsely exciting the fears of the person who is the subject of the offense by threats, or enticement or inveiglement by false and fraudulent representations amounting substantially to a coercion of the will is sufficient. In determining whether the person was coerced by fraud and inveiglement, the nature of the artifice employed and the age, education and condition of mind must be taken into consideration. The offense is not committed if the person taken away or detained, being capable in law of consenting, goes voluntarily without objection in the absence of fraud and deception, but a child of tender years is regarded as incapable of consenting."
Gough stands for the proposition that where false and fraudulent representations amounting substantially to a coercion of the will of the victim are used in lieu of force in effecting kidnapping, there is in law no consent at all on the part of the victim. Under those circumstances the law considers fraud the equivalent of force.
In the present case no actual force was used by defendant. Steve Turner voluntarily accompanied him, ostensibly for a lawful and innocent purposeto go look at some squirrels. But the State's evidence permits, almost compels, these legitimate inferences: (1) When defendant and Steve left Morehead High School and crossed the parking lot, Steve intended to cross the street and go to the basketball court at the James E. Holmes School; (2) meanwhile, defendant had decided to make the sadistic attack upon Steve and suggested looking at squirrels to entice Steve into the woods; (3) there were no squirrels in the woods; (4) Steve would not have gone into the woods at all except for defendant's false representations that squirrels were there and his deceptive, fraudulent conduct in "looking in the air like he was seeing some squirrels" and acting "like he was seeing them jumping from tree to tree"; (5) defendant's representations concerning squirrels were untrue and defendant knew they were untrue when he made them; (6) such false representations were reasonably calculated to deceive Steve Turner, considering his age and education and the nature of the representations (what thirteen-year-old boy does not possess a tremendous interest in small wild creatures?); (7) defendant made these false representations with intent to deceive Steve and thereby inveigle him into the woods so he could commit the assault upon him; (8) defendant did in fact deceive Steve and cause him to leave the parking lot and go into the woods where the sadistic assault took place; and (9) Steve's apparent consent to journey into the woods, having been obtained by the fraud of the defendant, was in truth no *849 consent at all but simply the fruit of defendant's fraud amounting substantially to a coercion of the victim's will.
On motion for nonsuit the evidence must be considered in the light most favorable to the State, and the State must be given the benefit of every reasonable intendment thereon and every reasonable inference to be drawn therefrom. State v. Cook, 273 N.C. 377, 160 S.E.2d 49 (1968); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967). Only the evidence favorable to the State is considered, State v. Gay, 251 N.C. 78, 110 S.E.2d 458 (1959), and contradictions and discrepancies, even in the State's evidence, are matters for the jury and do not warrant nonsuit. State v. Mabry, 269 N.C. 293, 152 S.E.2d 112 (1967). When the evidence in this case is so considered, giving the State the benefit of every reasonable inference to be drawn therefrom, it was sufficient to carry the case to the jury on the kidnapping charge contained in the bill of indictment. Defendant's motion for judgment of nonsuit at the close of all the evidence was properly denied.
The charge is not included in the case on appeal. "It is, therefore, presumed to be free from error and that the jury was properly instructed as to the law arising upon the evidence as required by G.S. 1-180." State v. Staten, 271 N.C. 600, 157 S.E.2d 225 (1967).
The verdict and judgment of the court below will be upheld.
Affirmed.
BOBBITT, Chief Justice (dissenting).
The gruesome manner in which defendant assaulted, tortured and seriously injured Steve Turner is graphicly described 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 unlawful 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, 457-458, 180 S.E.2d 115, 120-121 (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.
*850 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 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. 257 N.C. 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 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 *851 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?
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.