I am unable to concur with the majority in holding that the information was sufficient to charge appellants with the crime of kidnaping in the first degree, within the meaning of Rem. Rev. Stat. (Sup.), § 2410-1. I am of the opinion that the phrase "with the intent to extort or obtain money or reward for his release or disposition" modifies all the preceding language of the section and not, as the majority holds, merely the clause "or in any way held to service"; further, I believe that, when the legislature *Page 526 adopted the kidnaping act of 1933, it did so with the avowed purpose of making an entire revision of the former law upon the subject by classifying the crime of kidnaping into degrees, dependent upon the presence or absence of intent to extort a ransom for the release of the victim, and fixing different penalties therefor.
A comparison between the former law and the present law is of interest.
The act of 1909, Laws of 1909, chapter 249, p. 935, § 158, Rem. Rev. Stat., § 2410, reads as follows:
"Every person who shall willfully —
"(1) Seize, confine or inveigle another with intent to cause him without authority of law to be secretly confined or imprisoned, or in any way held to service, or with intent to extort or obtain money or reward for his return, release, or disposition, or to lead, take, entice away, or detain, a child under the age of sixteen years with intent to conceal him from his parent, guardian or other person having lawful care or control of him, or to steal any article upon his person; or
"(2) Abduct, entice, or by force or fraud unlawfully take or carry away another to or from a place without the state, and shall afterwards send, bring or keep such person, or cause him to be kept or secreted within this state;
"Shall be guilty of kidnaping, and punished by imprisonment in the state penitentiary for not less than ten years."
The act of 1933, Laws of 1933, Ex. Ses., chapter 6, p. 8 (Rem. Rev. Stat. (Sup.), § 2410-1), is entitled:
"An Act relating to the crime of kidnaping and the punishment therefor, and repealing section 158, chapter 249, Session Laws,1909 (section 2410, Remington's Revised Statutes of Washington), and declaring that this act shall take effect immediately." (Italics mine.) *Page 527
Section 1 of the act, p. 8, provides:
"Every person who shall wilfully,
"(1) Seize, confine or inveigle another with intent to cause him without authority of law to be secretly confined or imprisoned, or in any way held to service with the intent toextort or obtain money or reward for his release or disposition, shall be guilty of kidnaping in the first degree, and upon conviction thereof shall be punished by death or by imprisonment in the state penitentiary for life as the jury shall determine; and in every trial for kidnaping in the first degree, the jury shall, if it find the defendant guilty, also find a special verdict as to whether or not the death penalty shall be inflicted; and if such special verdict is in the affirmative, the penalty shall be death, otherwise, it shall be as herein provided. All executions in accordance herewith shall take place at the state penitentiary under the direction of and pursuant to arrangements made by the superintendent thereof: Provided, the time when such execution shall take place shall be set by the trial judge at the time of imposing sentence and as a part thereof.
"(2) Lead, take, entice away or detain a child under the age of sixteen years with intent to conceal him from his parent, parents, guardian or other lawful person having care, custody or control over him, or with intent to steal any article from his person, but without the intent to extort or obtain money orreward for his return, or shall abduct, entice, or by force or fraud unlawfully take or carry away another to or from a place without the state, and shall afterwards send, bring or keep such person, or cause him to be kept or secreted within the statewithout the intent to extort or obtain money or reward for hisrelease or disposition, shall be guilty of kidnaping in thesecond degree and shall be punished as in the case of a felony .. ." (Italics mine.)
The act of 1909 defined four types of unlawful conduct as constituting kidnaping, only one of which contemplated extortion as an essential element. All four, however, were of equal gravity in the eyes of the law, *Page 528 and the penalty for each was the same, imprisonment in the penitentiary for a term of not less than ten years.
The sensational abduction of the Lindbergh baby on March 1, 1932, and the wave of similar crimes following in its wake, the motives of which were the extortion of ransom, prompted the Federal government and many of the states to revise their criminal statutes in an effort to prevent the recurrence of atrocities involving the lives and health of innocent persons.
It seems plain to me that the intention of the legislature, in enacting the 1933 law, was to divide the crime of kidnaping into two degrees: (1) where the offense was committed with intent to extort a ransom, for which the penalty was life imprisonment or death, and (2) where the offense was committed without such intent, in which event the penalty was that ordinarily fixed for a felony. The reasons for such classification are, of course, obvious. The legislature recognized that ransom was the usual motive, without which the crime would seldom be committed; and, further, that, in such instances, if the ransom was not forthcoming, the victim in the hands of the criminal would likely be killed or suffered to die from want of care, as experience had amply shown.
Such an interpretation appears to follow both from the manner in which the statute was enacted and from its content. If our present law is to be given the interpretation placed upon it by the majority opinion herein, then it was wholly unnecessary for our legislature to do more than to increase the penalty for violation of the 1909 law from a minimum term of ten years, to life imprisonment or death. The former law covered every other angle and phase of the present law.
The legislature, however, did not amend the 1909 law, as the majority intimates; it expressly repealed *Page 529 it, so that none of its provisions thereafter remained in force. Having abrogated the old law, the legislature enacted an entirely new one.
An analysis of the language and arrangement of the 1933 act confirms me in the view that I have taken. The interpretation of the majority renders the present law illogical and unreasonable in several particulars.
According to the majority view, it is a crime to seize, confine, or inveigle another with intent to cause him to besecretly confined or imprisoned, but it is not a crime to seize, confine, or inveigle another with intent to "hold him to service"unless there be an intent to extort or obtain money or reward for his release or disposition. Could the legislature possibly have meant that subjecting one to service, after he had been seized, confined, or inveigled, was a lesser offense than merely seizing, confining or inveigling him without such subjection to service? I do not think so, for, obviously, to hold one to service is to add to the flagrancy of the wrong.
According to the interpretation of the majority, it is kidnaping in the first degree, punishable by life imprisonment or death, if an adult or a person over sixteen years of age be seized, confined, or inveigled for the purpose of secret confinement or imprisonment, while if the same act be perpetrated upon a child under the age of sixteen years, it is only kidnaping in the second degree, punishable as a felony, unless it be done with intent to extort money for his return. Did the legislature contemplate that result? I do not think so, for the reason that the necessity of preventing abduction is greater, if anything, in the case of helpless children than in the case of adults; moreover, the law was enacted to arrest a crime wave which had involved principally the kidnaping of infants.
According to the interpretation of the majority, if a *Page 530 person be seized, confined, or inveigled, and held in confinement or imprisonment within this state, it is kidnaping in the first degree; but if the person be taken beyond the jurisdiction of this state, and subsequently returned and kept or secretedwithin the state, it is only kidnaping in the second degree,unless it be done with intent to extort or obtain money for his release or disposition. Did the legislature mean that it was a less offense to transport the victim beyond the state line and then return him, than it was to retain him continuously within the state? I do not think so, for taking a person without the state makes the capture of the criminal more difficult and exposes the captive to greater hazards.
The interpretation of the majority is illogical for another reason. As the statute is now made to read, the crime of kidnaping in the second degree includes within it all the elements of kidnaping in the first degree. In other words, the graver crime is the lesser offense.
The effect of the prevailing opinion, in my judgment, exceeds all rational purposes of the act. Two illustrations will suffice, though many more could be suggested.
Suppose that a merchant discovers that a rock has been thrown through his store window. He sees a boy in the vicinity who, hethinks, is the miscreant. He takes the boy into custody and, without authority of law, confines him in the basement of his store, not for the purpose of compelling the boy to pay for the damage done, nor with the intent of obtaining money for the boy's release, but simply to satisfy his own resentment. As the statute is now construed by the majority, the merchant is guilty of kidnaping in the first degree, subject to life imprisonment or hanging. *Page 531
Again, suppose that a man invites another to his office, or to his home, and during the course of some dispute, or through sheer malice, turns the key in the lock and refuses to let his visitor depart or to communicate with relatives or friends. No demand for ransom is made or intended, yet, according to the majority opinion, such person is guilty of kidnaping in the first degree and may be imprisoned for life or hung.
True, indeed, a prosecuting attorney may hesitate to file an information in either of the illustrative cases, but what about the victim who proffers the complaint? Is he to be told that, although he has been kidnaped within the meaning of the graver provision of the statute, the penalty is too great to be imposed under such circumstances or that it is the province of the prosecutor to determine whether a criminal shall stand trial for a crime the elements of which he is charged with committing?
I will concede that, under my interpretation of the statute, one might seize, confine, or inveigle another and cause him to be secretly confined without being guilty of the crime of kidnaping at all. But the answer to that is threefold. (1) If such should be the case, it is the fault of the statute; (2) aside from the cases mentioned in subd. 2 in the 1933 statute, there would rarely be a case of kidnaping without intent to extort money or reward; and (3) if there were such a case, it would, in practically every instance, be attended with an act of maiming (Rem. Rev. Stat., § 2407 [P.C. § 8992]), assault (Rem. Rev. Stat., §§ 2413 to 2415 [P.C. §§ 8758 to 8760]), or coercion (Rem. Rev. Stat., § 2614 [P.C. § 8827]), and punishable under the statutes just cited. In the case at bar, appellants would not be immune to punishment, for their acts involved (1) conspiracy (Rem. Rev. Stat., § 2382 [P.C. § 8783]), (2) unlawful assembly (Rem. Rev. Stat., § 2550 [P.C. *Page 532 § 9080]), (3) burglary (Rem. Rev. Stat., § 2578 [P.C. § 8771]), (4) personation of an officer (Rem. Rev. Stat., § 2616 [P.C. § 8868]), (5) false arrest (Rem. Rev. Stat., § 2611 [P.C. § 8824]), (6) coercion (Rem. Rev. Stat., § 2614), (7) assault (Rem. Rev. Stat., §§ 2413 to 2415), and (8) maiming (Rem. Rev. Stat., § 2407).
To say the least, the statute in its present form is ambiguous as to whether or not intent to extort money or reward is a necessary element of the crime of kidnaping in the first degree. If there be an ambiguity, then, under every rule of criminal procedure, that interpretation must be adopted which is the more favorable to the accused.
There is yet another phase of the majority opinion with which I do not agree. The opinion holds that the desire for revenge or the satisfaction of any emotional upheaval constitutes a reward within the meaning of the statute. If that be the legal definition of "reward" as applied to the statute, then any emotion capable of satisfaction, or sought to be satisfied, is sufficient. It may be vengeance, hatred, anger, malevolence, dislike, contempt, disapprobation, even curiosity as to how the victim will react under the circumstances, or it may be the prompting of mere mischief. In short, it is anything from which the perpetrator may gain any kind of momentary emotional satisfaction.
However, what the majority seems to have overlooked is the very statute on which it relies, for by the terms of the act the "reward" must be for the "release or disposition" of the victim, not for some abstract, vagrant, or even malicious emotion experienced or indulged by the malefactor. In my opinion, this is a strained construction which even the civil law would not countenance, much less the criminal law of this state. *Page 533
I think that the judgment should be reversed on count one of the information and affirmed on count two.
GERAGHTY, MAIN, and ROBINSON, JJ., concur with STEINERT, J.