[14] While I agree that this conviction must be reversed, I cannot join in the majority's ultimate disposition of this case. Judge Parks is correct in pointing out that the information charged appellant under 21 O.S. 1981 § 741[21-741](3): intent to hold a person to service against his will. The information was not amended, and that was the charge read to the jury in the State's opening statement. This is a specific intent crime, and that element must be proved by the State. I must agree that the record does not support finding this element.
[15] However, the jury was instructed under § 741(1): intent to secretly confine. Defense counsel affirmatively accepted those instructions at trial. The State did not prove the crime charged in the information, but it did prove the case set out in the instructions. The record shows that appellant grabbed two young girls by the hair in a manner that prevented them from seeing or identifying his face. He forced them to accompany him across the street and began walking along Agnew Avenue, a four lane street with businesses on both sides. As a police officer drove past, he suspected foul play and turned back to investigate. Appellant and the girls were nowhere to be seen. Appellant took the girls behind a restaurant and through a wood lot. His path was taking the girls away from the business district where they could have availed themselves of help. The police officer, who was still searching, finally spotted them behind the restaurant as he drove along a side street. Appellant told the girls to keep quiet. When the officer turned around this time, appellant was taking the girls down the side street. Appellant released the girls and ran when the officer shined his lights on them.
[16] These facts clearly show that appellant, "without lawful authority, forcibly seize[d] and confine[d] another, or inveigle[d] or kidnap[ped] another;" and the attendant circumstances of concealing his identity and removing the girls from access to help show his intent "[t]o cause such other person to be secretly confined . . . within this *Page 210 state." The jury acted properly in returning a verdict of guilty under the instructions given.
[17] The problem in this case is that appellant was convicted of a crime other than the one with which he was charged. Thus, he was denied his right to due process. Jackson v. Virginia, 443 U.S. 307, 314, 99 S.Ct. 2781, 2786, 61 L.Ed.2d 560 (1979). The result in this case is controlled by 22 O.S. 1981 § 1067[22-1067]:
. . . [I]f it appears that the defendant is guilty of an offense although defectively charged in the indictment, the [Court of Criminal Appeals] must direct the prisoner to be returned and delivered over to the jailer of the proper county, there to abide the order of the court in which he was convicted.
[18] The import of the language is quite clear — there should be no instructions to dismiss. The statute requires that appellant be returned to Oklahoma County to remain in the custody of the Sheriff pending the filing of the appropriate charge, or until he is discharged by the making of bail, or otherwise, as provided by law. See, Minter v. State, 75 Okla. Cr. 133, 129 P.2d 210, 213 (1942).
[19] The majority's reliance upon Anderson v. State,76 Okla. Cr. 260, 137 P.2d 254 (1943), is wholly misplaced. That opinionaffirmed the conviction on remand of a defendant whose case had previously been reversed for insufficiency of the evidence. The proposition for which Anderson stood can no longer withstand constitutional scrutiny. However, neither should the majority attempt to use it in support of a proposition for which it never stood!
[20] Nor does Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), lend support to the majority's position. In that case, the Supreme Court granted certiorari "to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain thejury's verdict." Id. at 2, 98 S.Ct. at 2143, (emphasis added). As discussed above, the jury was instructed upon kidnapping with intent to secretly confine. The evidence was sufficient to support the jury's verdict. Furthermore, it is clear that the majority's opinion is not based solely upon a lack of sufficient evidence. Rather, it relies in part upon the due process problem which I have recognized. Burks does not bar a retrial in this case.
[21] Because I can find no basis to ignore the clear language of the Supreme Court or the mandatory language of our statutes, I must respectfully DISSENT from the majority's instructions to dismiss this case.