People v. Florio

Desmond, J.

(dissenting). Bach of the four defendants has been convicted of, and each has been given separate but concurrent sentences for, crimes of kidnapping, first degree rape and second degree assault. The proof, shortly stated, was that defendants inveigled the young woman complainant into an automobile, and, against her will, transported her to a secluded place where she was beaten and where each defendant ravished her. The convictions for assault and rape were sustained by sufficient proof. However, the crime of kidnapping, within the meaning and intent of section 1250 of the Penal Law, was not here proven.

Subdivision 1 of section 1250, to which the kidnapping counts in this indictment refer, is as follows: A person who wil*55fully: 1. Seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to he confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service or kept or detained, against his will; * * * Is guilty of kidnapping ”. A similarly worded definition of the crime of kidnapping has been in the statute books of New York since 1827 (see chapter 312 of the laws of that year). On its face, such language may seem appropriately to describe the acts of these defendants. But, ever since the passage of chapter XLVIII of the Revised Laws of 1801 (“ An Act to prevent and punish rapes and the forcible taking of Women ”) there has been listed in our statutes another crime, latterly called abduction ” (see 1937 Report of N. Y. Law Revision Commission, p. 457), and now, in modern language and, so far as pertinent here, defined in subdivision 3 of section 70 of the Penal Law, as follows:

‘‘ A person who: * * *
3. Takes or detains a female unlawfully against her will, with the intent to compel her, by force, menace or duress, to marry him, or to marry any other person, or to be defiled; * * * Is guilty of abduction”.

In this State, therefore, there have coexisted for many generations the crime of kidnapping, that is, the seizure, confinement or inveiglement of another with intent to confine or imprison him, and also another crime: abduction, that is, the taking or detention of a female, unlawfully against her will, for the purpose of marriage or defilement. During all that time the intent of the Legislature separately to deal with unlawful seizures when for sexual purposes, is manifest. At one time the two offenses stood on the statute books almost literally side by side, each carrying the same maximum penalty of ten years imprisonment (see 2 Rev. Stat. of N. Y. [1829], part IV, ch. I, tit. II, §§ 25, 28, p. 664). Presumably, the Legislature had deliberately kept in effect those two laws, and the later transfer of each to a separate chapter of the Penal Law did not show a change of the legislative intent in that respect (see People v. Rockwell, 300 N. Y. 557). In more recent times, the punishment for kidnapping has been increased until a person convicted thereof may now, under certain circumstances, be imprisoned for life, or a sentence of death may be *56imposed. Meanwhile, the maximum term for abduction has remained at ten years. And, what is more significant, it has been the law at least since the Penal Code went into effect in 1881 (L. 1881, ch. 676), that a conviction for abduction cannot be had “ upon the testimony of the female abducted, unsupported by other evidence ” (present Penal Law, § 71; old Penal Code, § 283). To permit an abduction to be prosecuted as a kidnapping would be to defeat that legislative policy as to “ other evidence ” (see People v. Plath, 100 N. Y. 590, 593). It is not surprising, therefore, that forceful takings for marriage or defilement have always been treated as abductions, and not as kidnappings — aside from the present case, we find only one reported decision where there was a conviction for kidnapping on such facts (People v. Kulikauskas, 273 App. Div. 978), and the briefs on that appeal show that this point was not raised.

Furthermore, the kidnapping statute itself (Penal Law, § 1250), contains internal evidence that abduction and kidnapping are distinct offenses, since in subdivision 3 thereof (not here involved) one who “abducts” another at or from a place without the State is declared guilty of kidnapping; in other words, abduction under such circumstances becomes kidnapping (see People v. De Leon, 109 N. Y. 226).

It is impossible to prove with mathematical or clinical precision that the Legislature intended always that these offenses should be separate, one from the other. However, everything points that way, including the fact that the abduction statute was amended as recently as 1940 (L. 1940, ch. 190). Eminent writers on criminal law have come to similar conclusions as to there being essential differences between the two crimes (2 Burdick on Law of Crime [1946], § 359; 1 Russell on Crime [9th ed.], p. 592), and the Supreme Court not long ago warned against stretching the meaning of kidnapping statutes by “ the magic of lexigraphy ” (Chatwin v. United States, 326 U. S. 455, 464).

We find in the prevailing opinion no answer to the foregoing demonstration of legislative intent. Irrelevant here are such cases as People v. Hope (257 N. Y. 147), People v. Small (274 N. Y. 551), and People v. Rosenthal (289 N. Y. 482); each of those is a typical kidnapping case, lacking in the very elements which, as pointed out above, distinguish abduction from kid*57napping. As to the suggestion that the present defendants could have been indicted for, and convicted of, both kidnapping and abduction, we can say only that the suggestion has never been heard before, and that it denies to the Legislature the power it has always exercised, of fixing the elements of, and the punishment for, specific and separate crimes.

The reference to People ex rel. Howey v. Warden of City Prison (207 N. Y. 354) can be disposed of by pointing out that the ruling there is as to the meaning of subdivision 2 of section 70, and not of the very different definition of abduction in subdivision 3, which latter subdivision is the one here material. Incidentally, the Special Term opinion in People ex rel. Howey v. Warden of City Prison (supra), approved by the court’s opinion in that case, supports the conclusion herein that the facts now before us make out the crime of abduction under subdivision 3 of section 70.

The judgments of the Appellate Division should be modified so as to provide that the judgments of convictions as to the 1st and 6th counts be reversed and those counts dismissed, otherwise affirmed.

Lewis, Dye and Froessel, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Fuld, J., concur.

Judgments affirmed.