State v. Berry

That portion of § 1, chapter 6, Laws of 1933, Ex. Ses., p. 8 (Rem. Rev. Stat. (Sup.), § 2410-1), defining the crime of kidnaping in the first degree, is grammatically correct, and is not ambiguous. It does not require the addition of a comma after the *Page 523 words "or in any way held to service," in order to make the language conform to the rules of grammar, or to remove any ambiguity in the language used. The addition of a comma at the place indicated would change the meaning of the statute, and, in view of the severity of the sentence which the law provides shall follow a conviction of the crime of kidnaping in the first degree, establish what it is argued would be a more reasonable statute.

The historic crime of kidnaping as established under the old laws of England had little or nothing to do with the desire to obtain money or reward for the release of the person kidnaped. The acts which constitute this crime were clearly stated in the former law of this state (Rem. Rev. Stat., § 2410), quoted in the majority opinion.

The crime stated in the first clause of the section last referred to is an heinous one, and one that may be perpetrated in connection with the exercise of the greatest cruelty, and is a crime deserving of condign punishment. If the court should construe the act of 1933 in accordance with the contention of appellants, the forcible sequestration within this state of a person over sixteen years of age, possibly for a long time, and under circumstances of great cruelty, would not constitute the crime of kidnaping, and it is possible that such a dastardly act might constitute no crime at all, or a misdemeanor merely.

The second clause of section 1 of the act of 1933, p. 9, establishes the crime of kidnaping in the second degree, and includes therein the unlawful taking by force or fraud of a person to or from a place without the state, and the bringing, keeping, or secreting of such person within the state, without the intent to extort or obtain money or reward for his release or disposition.

To me it is inconceivable that the legislature, while *Page 524 making such acts as those last mentioned an offense for which a severe penalty shall be imposed, intended to depart from the ancient rule and permit one, with impunity, to kidnap and confine within this state a person residing therein.

While it is true that acts can be imagined which might constitute, under the statute, kidnaping in the first degree, which acts might not apparently deserve the severe penalty provided by the statute for conviction of that crime, that, in my opinion, is a legislative problem with which the courts are little concerned. In construing criminal statutes, it is the duty of the courts to so construe them, if possible, as not to allow acts which are manifestly most serious crimes against society to go unpunished.

Under the act of 1909, the seizing, confining, or inveigling of a person, with intent to cause him, without authority of law, to be in any way held to service, was made kidnaping, as was the same act, committed with intent to extort or obtain money or reward for the person's return, release or disposition. Each was a manner in which the crime might be committed. By the statute of 1933, these two different methods of committing the crime of kidnaping were combined, and while it may be argued that a better law than the 1933 act might be enacted, that fact alone does not make the statute bad or require that words and language which are unambiguous be construed otherwise than in accordance with their plain meaning.

I am convinced that it should not be held that the words "with intent to extort or obtain money or reward for his release or disposition," as contained in § 1 of the act now in force, are a part of the first portion of the section ending with the word "imprisoned." In my opinion, they are a part of the second phase of the crime, defined as holding to service. *Page 525

I concur in the opinion of the majority holding that the record before us supports the conviction of appellants of the crime of kidnaping in the first degree, as defined by the statute now in force.

I cannot agree with the majority in holding that an emotional reaction or satisfaction may constitute a reward, within the meaning of the statute. The case of State v. Andre, 195 Wash. 221,80 P.2d 553, referred to in the majority opinion, was correctly decided, as the defendant procured, by kidnaping the prosecuting witness, a direct financial reward, the absolute equivalent of money, namely, transportation in a taxicab from the place where the defendant was to the place to which he desired to go. In my opinion, the opportunity to inflict torture upon the prosecuting witness in the case at bar, and the satisfaction which appellants may have derived from the infliction of such torture, does not constitute a reward, within the meaning of the statute.

I am in accord with the majority opinion in holding that appellants Berry, McAloon, and Reddick were properly convicted of the crime of assault in the first degree, and appellant Smith of the crime of assault in the second degree.

With the exception noted, I concur in the majority opinion.