(specially concurring).
I agree that the writ of habeas corpus should be denied to appellant. However, I wish to add a brief statement as to my views on the argument of appellant to the effect that the statute under which he was convicted (Sec. 408a, Title 18, U.S.C.A.) is unconstitutional in that no maximum penalty is prescribed in the law, thereby vesting legislative powers in the judiciary. In my opinion this argument of appellant has not been sufficiently answered in the majority opinion, dr in the case of Bates v. Johnston, 9 Cir., 111 F.2d 966, May 13, 1940, upon which the majority base their conclusion.
In the case of Andreas v. Clark, 9 Cir., 1934, 71 F.2d 908, this court had under consideration a like attack made upon the constitutionality of Section 457, Title 18, U.S.C.A. In the cited case (71 F.2d page 909) we said: “The constitutional validity of a particular statute is not affected merely because the statute does not expressly limit and fix the maximum penalty which may be imposed. It is' sufficient if the maximum penalty is fixed by a general or related statute, such as section 457, title 18 U.S.C.A., which fixes death as the penalty for rape.” We held* that the proviso of the statute vesting power in the court to fix the term of imprisonment of an Indian guilty of rape on a female Indian was intended as amelioration of the punishment of death fixed by the act.
The statute with which we are here concerned is analogous to that under consideration in the Andreas case, supra. The statute defines only one crime of kidnapping, and fixes the punishment of any person convicted of that crime at death, upon recommendation of the jury, provided the kidnapped person has not been liberated unharmed. In the event the jury does not recommend the death sentence, or in the event the kidnapped person has been liberated unharmed, then the penalty for the crime shall be such prison sentence as the court shall determine. I think it clear that *751Congress intended to mitigate the punishment of death in the cases where the victim has been released unharmed, and where the jury does not recommend the death sentence. As we held in the An-dreas case, the placing of discretion in the court as to the term of imprisonment, when the maximum penalty of death is prescribed, does not render the statute unconstitutional.