*1 546
PEOPLE v. OTIS ADAMS
Kidnapping
1.
—Statutes—Judicial
Construction.
kidnapping
This
is
all-encompassing
state’s
so
un-
operative
objective
less its
effect
confined
standards
(MCLA
it would be void for
750.349).
overbreadth
§
Kidnapping Asportation—Secret
2.
—
Confinement.
patterns:
statute covers two basic
(a) where
place
the victim is seized and removed to another
(b)
where
place
the victim is confined in
found;
where he is
first,
asportation
an
movement
victim
element;
second,
essential
essential,
movement
is not
secrecy
(MCLA
but
required
750.349).
confinement
§
Kidnapping
3.
—Non-secret
Confinement —Movement.
confinement,
A
other than a
confinement,
secret
without move-
ment of
kidnapping;
every
the victim is not a
movement of
(MCLA
the victim is
a 750.349).
not
§
Kidnapping Asportation.
4.
—
An
victim,
of the
where there has
been a
secret
victim,
confinement of the
is necessary
support
kidnap-
ping
(MCLA 750.349).
conviction
§
Construction—Purpose—Literal
Interpretation.
5. Statutes —
spirit
A statute’s
purpose
prevail
should
over its strict letter.
[2-4, 10-13,
[1]
[1, 8,
[7,
[5]
[2-4]
[6]
[14]
15]
napping.
Criminal statutory lan- lawry ambiguous implication the from some guage. Vagueness. Law — Criminal Law —Statutes—Constitutional 8. process if vague due may as to violate be so A statute criminal give fair imprecise fails to it (a) language is so its language (b) is cer- or its proscribed, of conduct notice the free- impinge upon First Amendment breadth could tain but its vague and standardless language is doms, (e) so its is not jurors to decide what judges and leaves particular case. prohibited by each Vagueness- 9. Criminal Law — Law —Statutes—Constitutional Discretion. Prosecutor’s give no vague as language is so A whose criminal statute prosecutor when applied objective to be standards constitutionally because of invalid charging a defendant potential prosecutorial abuse. of Kidnapping Asportation—Purpose—Bisk Harm. of 10. — asporta- dealing with the victim’s statute, kidnapping when victim, but just movement of prevent tion, not to seeks risk increases the place which one to another from removal 750.349). (MCLA harm him § Independent Significance — — Kidnapping Asportation — 11. From Environment. Bemoval asporta- an not constitute a victim does The mere movement has asportation unless the kidnapping statute under the tion assault; victim unless the independent of the significance found, con- was he where from the environment removed independently are the victim movement to sequences of the 750.349). (MCLA assault significant from the § Kidnapping Asportation — — — 12. Removal Prom Environment “Environment”. from which a The “environment” victim must be asportation independently significant removed to have an totality the commission of an assault is the surround- ings, (MCLA 750.349). animate and inanimate § Kidnapping Asportation —Confinement —Within Prison. The crime of was not where committed inmates seized, confined, forcibly prison moved a official from prison one location to another within confine- where the secret, рarties ment was not location all at prison times known to other officials and their location was cordoned overwhelming off surrounded with an armed force significance and where the of the official had no independent upon him, of the felonious assault because the prison official was not removed from the environment from found, subjected which he was he was not risk increased harm but was moved from a crowded cell block to the prison’s hospital provide cooling-off period, in- and the *3 mates never intended to the official hostage use as a to effect escape, having grievances an him an but seized aid their (MCLA 750.349). heard § Battery 14. Assault and —Assault—Prison Guard. by prisoner prison An a guard assault on a or official is treated differently no an prison walls; than assault outside this state dealing especially has no statute with an the situation of guard. prison assault on a Expan- — — 15. Criminal Law —Statutes Construction Judicial sion. A statute, may criminal with law, contrast the common expanded by problems beyond the courts to meet new contemplation Legislature when statute was enacted. by Gillis, Dissent P. J. Kidnapping Asportation—Independent Significance. 16. — by kidnapping Thе rule crime an committed of asportation or commission another crime confinement of only where the restraint and movement is not inci- forcible integral part designed dental to or that other crime is of only gross prevent a distortion lesser crimes into more of prosecutorial zeal; serious crime excess was not rule designed merge merely kidnappings “true” into other crimes Otis Adams kidnappings accomplish were used ultimate because greater equal gravity (MCLA 750.349). crimes lesser § Kidnapping Involuntary Seizure. — 17. gist is the a involuntariness offense (MCLA §750.349). seizure Confinement, Kidnapping Element—Seizure, and Movement. 18. — —Within Prison. question where was occurred Whether of fact confined, seized, inmate, forcibly and moved defendant, an prison prison to another within the one location from official (MCLA exposed harm a serious risk and official 750.349). § J. Falahee, J. Charles Jackson, from Appeal at Detroit. 11, 1969, 2 April Division Submitted June Leave Decided 3940.) No. (Docket Mich 784. granted, appeal De- L. was convicted Otis Reversed. appeals. fendant A. General, Robert Kelley, Attorney
Frank J. Barton, A. General, Bruce Derengoski, Solicitor Adams, Paul R. Assist- Prosecuting Attorney, ant Prosecuting Attorney, people. Treciak,
James S. appeal. for defendant on Before: H. J., P. J. Bronson Gillis, JJ. Levin,
Levin, defendant, J. The Otis L. Adams, appeals kidnapping. his conviction of a not a now common-law
Kidnapping statutory, The portion crime. relevant of our makes it statute unlawful and without law- maliciously “wilfully, * * * ful or secretly confine authority forcibly App 34 546 within this person state
or other imprison any 2But forcible confinement every will”.1 against his offense of capital is not the like all-encom is so kidnapping statute, most, Our opera its literal breadth that unless its in passing confined standards by objective effect tive be for would void overbreadth.2 does not Where a terms kidnapping a require “carrying away” aspor- the victim, or, tation requirement substitute, as the element has been read secrecy, judicially into and made part of the definition of the crime.3 There are two basic kidnapping patterns. In one, the victim is seized and removed to another place; 1“Any person wilfully, maliciously who lawful without author- ity forcibly secretly shall imprison or confine or any person other this against within state will, forcibly carry his or shall or send person inveigle state, forcibly such out of shall this or сonfine, seize or or kidnap shall any person or other with money intent to extort thing thereby or other valuable or with intent either to cause such person his secretly imprisoned to be confined or against in this state will, way any or in against will, held to service shall be guilty felony, of a punishable by imprisonment prison in the state for any or years.” life (Stat term MCLA 750.349 Ann 1954 § 28.581). Rev § seemingly separable It will be observed that there are two parts statutory provision. of forcible part, this proscribed Under the first there is or person secret confinement within this forcibly state or sending him part out of the state. The second concerns a forcible confinement, inveigling or seizure or with intent to extort money thing secretly other valuable imprison confine or against victim or to hold him for service his will. only speaks The information in language this ease of the part. (See 4, infra.) first part statutory The second may of the definition viewed qualification part and, so, if necessary first then it would be every charged to consider case where whether a seizure or proscribed specific confinement was with the part may Or intent. independent the second part. be viewed as of the first form of the dispositiоn information filed this ease and our of this appeal unnecessary makes it ques- for us to consider these further tions. (88 See United States v. Robel 389 US S Ct 19 L 508, 515); Ed 2d v. Katz NY2d 839, 841; 845, 847). NYS2d 233 NE2d ed), Perkins Criminal (2d p 177; (1969) on Reid Law State v. NC 511). SE2d *5 Adams Otis where in the confined place victim is other, in the move- asportation an first, In the found. he is in the element; an is essential victim ment of the but element, secrecy an not movement is second, required. is confinement do not charge people case the In this information confined. secretly was victim with “forcibly Otis Adams the defendant charged word his victim4 —the imprisoning” and confining or se- “forcibly phrase in the statutory “secretly” was charge when the was omitted confine” cretly drawn. insofar kidnapping statute, Michigan
To save a dec- from confinements, nonsecret as it applies because of over- unconstitutionality laration A asportation. an requiring we read it as breadth with- confinement) secret than (other confinement not kidnapping. of the victim is a movement out will out, every which we spell reasons And, inci- of an assaultive crime movement of the victim that crime is not kid- dental commission of to the have a significance must napping; of the assault order to manifest independent and separate offense capital was seized victim, prison official, case this in- and other Prison Adams by State in Jackson from part prison one and moved mates movement occurred The seizure another. exact location guards; prison presence at Adams was the defendant and of the victim both had the place who prison guards known to all times overwhelming surrounded off and cordoned that Adams ever not claimed force. armed charged him with: which an information tried under authority forcibly confin- lawful “wilfully, maliciously, and without Inspector Joseph Dem- person, to-wit: ing imprisoning another against his will.” bosky, within this state App prison victim from the remove his intended to to effect This escape. attempt he intended to nor it the usual hostage pattern, usual *6 kidnapping pattern.
I.
Facts of October Adams On the con- morning alcohol and quantities sumed substantial barbitu- rates of several other company inmates Their Prison. conversation turned Jackson to the grievances imagined felt they —real —which administration. against prison after 11 and inmate Shortly a.m., Adams Edward went main hall of the dining Whitehead where lunch was served. prison being Adams cut into the line ahead of other serving inmates and was told a go to the end of line. guard Adams directed some verbal at abuse the guard, then proceeded with Whitehead to the 4- prison’s a cell block, portion block the northwest Adams’ conduct prison. aroused the attention of two unarmed prison guards followed him to who 4-block.
Because was the this lunch hour, several hundred prisoners were about milling 4-block. The presence of Adams and Whitehead, plus third inmate, Alvin all of Shaw, whom were agitated, highly as well as the two guards and hundreds milling prison- ers, led to a disturbance of uncertain proportions.
At this time Inspector Joseph Dembosky, highest ranking uniformed prison was noti- officer, fied disturbance 4-block. He immediately proceeded to the area and thrust himself into the center of the milling crowd. Inspector
Before Dembosky could take ac- any tion, he was seized from behind by inmate White- Adams Otis also Adams throat. knife to held who head, wave back used to he which knife produced Dembosky Inspector in on pressing prisoners testi- Dembosky Inspector trial theAt Whitehead. we talk about “Can’t he said, point at this that fied Dembosky that testified witness Another this?” about this?” and talk somewhere gowe “Can’t said, whom had all of and Shaw, Whitehead, Adams, at knifepoint Dembosky accompanied then knives, yard. into the prison 4-block out of thousand inmates one approximately were There Shaw, Whitehead, Dembosky, in the yard testified Inspector Dembosky 4-block. left of a riot if the danger there he felt that He suggested in the yard. remained party things to talk over. prison gymnasium they go accompany Whitehead, forced to Instead, he was *7 which was hospital, the prison and Adams to Shaw, from the entrance to 4-block. 1500 feet roughly armed their to the journey hospital, During warnings shouted to repeatedly heavily- inmates Inspector armed tower that would guards Dembosky be killed if were fired upon. they before
Shortly reaching hospital building, joined another Milton Thom- group by inmate, who as, was also armed. Together, immediately after entering they seized two guards, hospital, a prison and an inmate doctor, elevator operator named Hubbard. Shaw, Whitehead, Thomas, Adams, together with Inspector and the Dembosky other then victims, to proceeded lounge the doctor’s on the fifth floor of the hospital. erected barricades around cohorts
Adams his de- intercom, they repeatedly Over an lounge. as manded to sеe well prison officials, various to air their also They demand- warden, grievances. were re- There reporter. newspaper ed to see would Inspector Dembosky be warnings peated upon. were fired if they killed the armed in- the hours followed, During behavior toward contradictory mates displayed was released when captives. their The physician he had a heart condition. Adams ascertained that wife notify pregnant Thomas told warden would that he not be captive guards one inmate harmed. Hubbard was se- Contrastingly, then Adams, released as an ex- by beaten verely ample of Adams’ intentions. serious
A fifth officials visited the floor prison number discuss A re- grievances. newspaper landing summoned to the scene was for al- porter occupied grievances. most hours in recording three these expressed being his fear of shot repeatedly when he left fifth guards floor. hours, After Shaw, about Whitehead, 5-1/2 Thomas, and Adams were persuaded abandon their barricaded position. Upon given being assur- ances that would they they released shot, their captives unharmed. then They proceeded the deputy warden’s where office, they surrendered their wеapons.
The reprehensible nature of Adams’ action does not alter our duty determine whether the evi- dence him against is sufficient to support convic- tion for kidnapping Inspector Dembosky.5 The failure Adams’ counsel to move for verdict, a directed to make *8 trial, assign a motion for a insufficiency new or to of evidence as plain appeal error on does not us obligation relieve of our to notice People v. Smith error. See (1932), 486, 260 Mich where, despite procedural identical deficiencies, Michigan Supreme Court 489): (p observed jury “Conviction procedural without evidence no commands support, and when fundamental, the error noticed, and manifest such a permitted conviction cannot be to stand.” parties We invited the to file additional on the question briefs and did we they decide so. 555 v. Otis Adams
II. The its statute and overbreadth of any “The sense statute is to he collected from its nature of matter. object subject Par- ticular be read in the phrases must light con- setting. textual The of such import language controlled The literal sense termi- accordingly. prevail cannot over the nology spirit reason and Copelаnd a whole.” Dodd expression v. (1908) Super , 481, (240 NJ A2d 444, 446). “All laws should receive sensible construction. General terms should be limited so in their applica- tion as not lead to injustice, oppression, or an consequence. absurd It will always, therefore, be presumed that the legislature intended exceptions to its which language, would avoid results of this character. reason of law in such cases should Daniels over its letter.” v. prevail (1909) , 71 Cal 2d 1119, (80 897, Cal Rptr 903; United States 231), 459 P2d Kirby 225, quoting L (1868), (7 482, (19 278, US Ed Wall) 280). A, “spirit prevail statute’s should purpose letter”. Webster Electric over its strict Rotary Steel 321 Mich Company 526,
“When choice has to
made between
two read
ings of what conduct
Congress has made
crime,
is appropriate,
before
choose the harsher
we
alter
native,
require
Congress
have spoken
should
language
clear
definite.
should
We
outlawry
derive criminal
from
ambiguous
some
implication.” United States v. Universal C.I.T.
Credit
Corporation
US
221,
S Ct
L
Toussie
97 Ed
260, 264); followed
United States
397 US
S Ct
858, 864;
Our has not been kidnapping statute construed by our Supreme Court in the context child except *9 App 546 Mich
556 Court re In those cases the disputes. custody the reading formalistic set aside jected rigid, convictions.6 language obvious the immediately about
What of our the extraordinary it proscribe. of conduct might range confinement phrase imprison- In “forcible ment,” word nar- “imprisonment” clearly rower “confinement”; term than every “imprison- ment” would a “confinement”. The word “forc- ible” if adds word little, anything, “confine”. “Confine,” in the sense in which it in is used this of an statute, clearly speaks restraint involuntary of of the individual, liberty which, of necessity, is brought about use force. some Similar- as to the ly, “against words will”. If his the con- finement was voluntary, it would mean that the vic- tim was confined he free although was to leave —an obvious contradiction of terms.
Since “confine” in this context strongly implies
some
force of
kind,
offense is
when
complete
actor “wilfully,
maliciously
without
lawful au
thority” confines the victim.
since
the ordi
And,
case
nary
there is
to be
likely
no
question
lawful
(and besides,
lawful
authority
authority negatives
and since
“malice”),
the wilfulness
law
required by
does not
viola
enlarge
requirement
malice,6
tion
the terms
the statute
occurs whenever
actor “maliciously
other
any
person.
confines”
People
v. Nelson
See
(1948),
322 Mich
(agent
of father
physical- possession
who
four-year-old
took
aof
immediately
child and
People
guilty
turned him over
;
father was not
kidnapping)
Congdon (1889),
(adopted
Although case, correct definition of the legal meaning of term “malice” in criminal well as as civil cases.8 freed of its
Accordingly, tautology, kidnap- in- ping statute, makes it simply put, kidnapping to another tentionally person legal jus- without confine or excuse. tification
It will be observed that the statute makes no refer- ence to the duration or circumstances of the con- finement. the statute Literally construed, leads absurd results. The trespasser who momentarily a locks caretaker cottage on the placed same the professional as criminal foоting who invades a seizes the home, occupants at transports gunpoint, them ato secret hideout, holds them for ransom. The robber who victim orders his to stand motionless while his wallet is removed is of guilty the same crime as robber who forces his victim to drive to a miles deserted location, where he is terrorized and abandoned. A group of college students who invade a dean’s office, wrongfully confining occu- its pants, commit the same offense aas of gang rapists who seize a woman and remove her from her family to a place of isolation.
Shopkeepers who detain wrongfully suspected shoplifters, cabdrivers who purposely deliver pas- sengers to the wrong destinations, tavernkeepers who bar exists until bar bills have been all paid, may be subject to civil damage actions, but sensible Se e 7, supra. People Morrin, the classification such acts rebels at
penology capital offenses. offend a ra- examples as these emphatically
As all embrace the vari- they penal code, scarcely tional menacing, but scarcely eties of technically culpable, ban statutory on “inten- which violates conduct оther person. confinement” any tional United States Chatwin US L Ed 198, 202, 203), S Ct the United States Court Supreme recognized of the broad constructions Federal dangers overly Court framers Act. The noted Kidnapping “comprehensive the act had used language * # * possible kidnap to cover every variety followed interstate None ping transportation”. theless, Court define the acknowledged duty sanction more narrowly limits *11 than the the act would : language support “Were we sanction careless of concept of crime were disregard we and of of background setting the Act the boundaries would be potential lost in liability infinity.” The of the Supreme refusal Court authorize “careless concept reflects an kidnapping” appre- ciation of the potential inherent misuse an im- precisely drawn statute. We share this concern.
The doctrine that be statutes so may vague as violate due process embraces three major classes legislation.9 first, The and perhaps most common, species that of penal statute which fails to fair give notice of the conduct A proscribed.10 statute whose 9 See, generally, Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 quirements of L (1960); Note, U Pa Rev 67 Due Process Re in Statutes, Definiteness 62 Harv L (1948). Rev 77 10 Jersey See Lanzetta (1939), 451, v. New (59 618, 306 US 453 S Ct 619; 888, 890); 83 L City Ed Bouie v. (1964), Columbia 378 US 559 People v. Otis Adams certain, but whose breadth may impinge language upon First Amendment protected freedoms, may for vagueness”.11 also be “void need not dwell on these We issues. The statute upon before us intrudes constitutional safeguards far in a more obvious fashion. The third type of unconstitutionally vague statute which con- upon judges jurors fers unlimited discretion to determine who shall punished for certain con- duct.12
“A law fails to meet
requirements
of the Due
if
Process Clause
it is so
vague
standardless
it
the public
leaves
uncertain as to the
conduct
prohibits or leaves
judges
jurors free to decide
without any
fixed
legally
standards, what
is pro
hibited and
what
is not
each particular
case.”
Giaccio
v.
Pennsylvania
382
(1965),
US
402
399,
(86 S Ct
15 L
518, 520;
Ed 2d 447, 450).13
(84
1697,
; People Goulding
347
S Ct
12 L
894)
Ed 2d
v.
(1936), 275
Mich
(1942),
City
v. Austin
456;
Dearborn
301 Mich
Detroit
(1967),
v. Bowden
6
514; City
Heights
App
v.
(1969),
Bellock
17 Mich
11 Baggett
(1964),
v. Bullitt
(84
1316,
Discretion of the in the sense legal term, discretion comes arbitrary power.14 rather, naked and but, assault, bat virtually any any obvious that It is some “inten involves robbery tery, rape, any any victim.15 person tional confinement” is to literally To read the con vert a for assault and misdemeanor, example, batt A capital into a offense. literal ery,16 reading of the kidnapping statute would a permit prosecutor aggravate charges against any assailant, robber, literal rapist by charging the violation the kid statute which must napping inevitably accompany each of those offenses. connection, this it is important to remember
that under present a precedent practice prose- cutor is by his gоverned personal solely judgments; there no objectifiable are standards which must be applied. Plea is an bargaining established practice; a prosecutor threaten may, therefore, conviction of a capital offense with a view to extracting guilty plea without review of his any charging decision.17
Such abuses may not be common in this state; yet,
as the United States
Baggett
Supreme
Court said
Bullitt
(1964), 377 US
S Ct
360,
(84
L Ed 2d 377, 386):
Hopkins,
supra.
Yick Wo v.
Levy
People
Mr. warns Justice Roberts us: “Evil men are rarely given power; take it they over from better men to whom en- it has been trusted.”18
J ust as it obvious did not Legislature intend the kidnapping statute to expose virtually other crime against capital sanc- every person tions, so too obvious that of the language provides no standards for who determining our shall for its violation. punished respon- sibility preserve the essence of the statute while it to withstand construing constitutional challenge.19 we turn to an analysis of the substan- Accordingly, law of tive
III. Substantive law of common At an law, kidnapping required asporta of of tion the victim out the country. Kidnapping misdemeanor, merely was was viewed form of aggravated false imprisonment; the aggra factor was vating the removal the victim from the sovereign’s protection.20 in the
Kidnapping statutes United States have abolished requirement a national re gional boundary be breached.21 Screws United States 1031, 325 US S Ct ; 1063 89 L 1534). Ed 19 Michigan Towing City Association See Detroit Michigan City Lansing Bar 456; State Mich 361 185, 195. Mich 20 For discussions of kidnapping, the common-law crime of see Perkins (2d ed), on Criminal p Note, Law A Rationale of the Kidnapping, Law of L (1953). Colum Rev 540 Note, See A of Kidnapping Rationale of the Law Colum element of
Modification crime not the American only common-law statu from the common law. Public departure re tory against vulsion wave carefully-planned often brutal ransom kidnappings 1920’s *14 and 1930’s22resulted in the of imposition heavy pena the death lties,23 for including penalty, kidnappers, of the Federal passage Kidnapping Act, so- called in Law.24 was Lindbergh that Michi gan imposed a maximum sentence life imprison ment for kidnapping.25
Another characteristic of kidnapping legislation has failure been its to distinguish between the crimes kidnapping false imprisonment. with Michigan, along states, most does not have a separate false imprisonment statute.
These aside, matters the principal question that perplexed has American courts in kid- construing napping legislation has been the degree asporta- tion required to transform an assault, robbery, L et (1953); Rev 540 seq. 11, pp Model Penal Code Tentative Draft No 22 See McGuire, Fisher and Kidnapping and the So-Called Lind bergh Law, 12 L NYU 646 (1935); Rev Finley, Lindbergh The Q Law, 28 LGa J 908 (1939-1940). 23See Code, Model Penal 11, Tentative Draft p No 11, comment “Kidnapping (or 1: category it) some punishable by life imprisonment or in except death all (10 states years), Alaska Con (50 years), (40 necticut years), Minnesota Hampshire (25 New years), and (20 North years). Dakota kidnapping Where is divided degrees, simple into kidnapping even punishable imprison life ment, states, in some and the maximum in commonly other states is yеars.” 10-25 punishable by offense is also relatively low maximum sen years Montana; tence of 10 534 State see v. Randall 137 Mont (353 1054), Judge P2d opinion. cited Gillis’ Modern legislation, as an to the inducement felon to release his unharmed, victim capital reserves the kidnapping offense of cases where voluntarily the victim is not physi- released free of serious injury. e.g., See, cal seq.; York Law, New Penal et 135.00 Model § Code, seq.; Penal 212 et Study Draft of a New Federal Criminal § Code, 1631. § 24 18 USCA 1201. § 1931, PA 328, No § People Otis Torn into between the crime other that a most significant asportation common-law rule and the obvious required, legislative intention scope broaden vir offense, courts, without endorsed the tually exception, idea that any however asportation, slight, was sufficient to constitute kid napping.26 formulation opin- of this were the
Representative Supreme the California Court ions Chessman P2d Cal 2d Wein 383, 399, 50 Cal 2d 1017), Chessman, 466). P2d In defend- forced his victim feet ant move to his automo- he where her. The sexually assaulted Court bile, “It that, fact, held is the not the distance, of forcible removal which constitutes this state”. Wein, Chessman standard Court applied uphold conviction of a defendant *15 who forced his victims tо move from room to room in their own during homes series of robberies and rapes. These holdings came under sharp criticism,27 but were accurate of reflections of state the law28 quite until recently. significant departure
The first
from the
as-
“any
came in
portation”
requirement
another California
case, Cotton Court
Superior
56
Cal 2d
(1961),
459,
(15
Rptr 65,
464
Cal
364
68,
241,
P2d
A
244).
labor
to
dispute led
the invasion
a farm
of
camp
worker’s
union
by
members. Several braceros were assaulted
26
Lowry (1965),
State v.
263
(139
481);
870);
NC 536
SE2d
State v.
(1969),
Super
(253
Kress
105 NJ
514
(1931),
A2d
Cox v. State
544 (177
898).
203 Ind
NE
27
Code,
See
11,
14,
Model Penal
p
9,
Tentative
No
Draft
to Chessman. Wein was termed the reduetio ad absurdwm
case
Packer, The Case for
of
Code,
Revision
Penal
13
L
Stan
Rev
252, 259,
(1961).
fn 41
28
(92
See
Florio
The California saying convicted kidnapping, could be ants would ap- in the instant case ‘asportation’ that “all assault and riot- be incidental only pear it should avoid “ab- The Court declared ing”. of the kidnap- surd consequences”29 application that a literal laws; reading warned ping “could in a California statute result rule that every be for prosecuted kidnapping”. аssault could also Chessman Court it did not ignored, overule, The Wem, but the of Cotton was not lost on significance the commentators.30 after Cotton was
A few the New years decided, York Court of Appeals approach articulated a new Levy requirement. NY2d NYS2d victims, the defendants accosted 842, 844), NE2d at who had arrived their home in automobile. just wheel, One the defendants took the and the vic- husband and were driven about tims, wife, city streets twenty minutes, covering twenty-seven blocks. were this the victims robbed During journey money jewelry. were defendants convicted jury kid under the New York napping which statute, pro vided that a who person “confines” another with in * * # tent “cause him confined” against his will is guilty The Court of Ap peals reversed. Central to the Court’s holding its concern that the broad statutory definition, construing That statutes courts avoid constructions which *16 Attorney lead consequences, to absurd see General Detroit v. United Railway (1920), People 254; 210 Mich v. Chimovitz Wright re 360 Mich 30 Note, Kidnapping and Asportation, the Element of 35 So Cal L (1962); Note, Kidnapping Rev Incidental to the —Movement Commission of a Support Crime Held Insufficient for Indictment Simple Kidnapping in California, Pa L II Rev 293 (1961). v. Otis “could overrun several literally othеr crimes, no- tably and and robbery rape, in some circumstances since assault, detention and sometimes confinement, against will of the victim, frequently accompany ** * crimes. these common occurrence robbery, example, that the victim be confined at bound briefly gunpoint or and detained, moved into left in another room or place.
“It these sometimes unlikely ac- restraints, which companied by are incidents asportation, long other crimes and have been treated integral of other were intended parts crimes, Legis- lature in its broad definition framing kidnapping separate to constitute crime even kidnapping, though might sometimes out kidnapping spelled statutory from the words.” literally contrary prior overruled decision31 Court statute was to be limited in kidnapping held that “to in the conventional application ‘kidnapping’ its in which that term now come to have ac- sense has quired meaning”. in Levy degree
Left was the precise unresolved “kidnapping constitute asportation necessary sense”. The opinion did, however, the conventional revive requirement some meaningful aspor- tation must In a crime. accompany subsequеnt case the Court declared that “the Appeals direc- tion of the criminal law has been to limit scope statute, with its very substantially more severe penal to true consequences, situations crimes which apply are or assault essentially robbery, rape, and in which some confinement occurs as a subsid- Lombardi iary incident”. 20 NY2d 31 People supra. Florio, girl In Florio a was enticed into automobile and driven from to an spot Manhattan isolated she was queens where raped. *17 App 34 546
566 519, 521; 229 NE2d 206, NYS2d (282 270 266, 208). in Court case, a still more recent held that But, nature of the complicated asportation” “the more kill pursued in defendant’s efforts the victim, Levy-Lombardi the case from the rule.32 removed New York reasoning Appeals The Court accepted not other courts. Several jurisdic- was the idea that a expressly rejected tions substantial under necessary broadly-worded statutes.33 the California decision, six-to-one 1969, by prior Court overruled its in Supreme constructions People the Chessman-Wein line of cases. v. Daniels 910; 71 Cal 2d 1139 (1969), 1119, (80 Rptr 897, Cal 459 225, 238), clearly repudiates P2d the doctrine of the victim any asportation is sufficient to con stitute There the victims had been forced to movе about in their apartments during the commission of crimes of robbery and rape. The Court declared: hold “We the intent of the Legislature * * # was to from exclude reach [the. statute’s] * * * ‘standstill’ only robberies hut also those
in which the movements of the victim are in merely Davis v. State State (Del, 921, infra fendant entered the since 119 Court authority telephoned for future cases People Miles (1969), In Rice See, also, accompany 245 NE2d State Court of (160 been overruled cited for their NW2d v. accompanying had been v. Wein, 1969), State v. inquire State Ayers Special 688, 694). involving (1970), 715). rejection defendant victim’s (1967), if Soders (see committed, Appeals Maryland the Minnesota she needed A2d 204 Kan 816 different facts.” text. People apartment. 23 Md Levy. interesting and declined to Kan NY2d v. State aid. Daniels, apartment 106 Ariz Both Chessman and Wein have Court (466 The v. 527, She screamed. Morris to note that victim held that Chessman P2d 539 (426 “predict A2d 311); (297 was then another supra, the offense of P2d 261), P2d NYS2d the Kansas A Samuels v. the result 281 Minn discussed building. Wein, neighbor required 275). the de- 25); 913, v. Otis Adams commission robbery cidental do not harm over and substantially increase risk crime present above that of rob necessarily itself.” bery
A Court Supreme few months ago California on its decision Daniels. See elaborated *18 Cal Rptr 736, Timmons 3d Cal Court that P2d where the held the defendant’s 648), acts in victims’ automobile entering robbery them drive it five blocks, to some directing city order facilitate did not robbery, constitute since the acts did not in- kidnapping “substantially” “the risk the victim crease that suffer may significant over and injuries above those which physical victim of the crime is normal- underlying [robbery] Smith ly see exposed”. Similarly, 426 (93 Cal 3d Cal P2d Rptr 743, 655), where the Court held crime of had kidnapping not been committed where, the course of robbing hoi el, the defendant caused night clerk to move about the office and up to a second floor room.
Having reviewed the authorities in some we detail, approach decision.
IY. The asportation requirement and the which it is hy applied
standard We hold that, except those rare relatively cases victim where the is locked in the intentionally place where is he found there isolated secretly confined, reasonable construction of our kidnap- an ping requires asportation the victim before the crime of Still complete. to be answered extent of the asportation re- quired. 34 Mich kidnapping juris- the history believe
We futility demonstrates in this country prudence requisite calculate the asportation attempting The harm linear measurement. sought terms movement of the but His victim, is not prevented one to another and attendant place from in- removal risks to victim.34 The actual distance the creased victim does corres- transported necessarily with the of his invasion An pond physical interest. of 50 feet in some asportation may expose cases victim to those abuses which precisely statutes are designed prevent; in other cases, feet alter the victim’s may situa- tion not at all.
We have concluded that under the kidnapping statute a movement victim does not constitute an asportation unless it has significance independent assault. And, unless the victim is removed from the environment where he is found, conse- *19 quences the movement itself to the victim are not independently significant from the assault —the movement does not manifest the commission separate crime —and punishment for injury to victim must be founded upon crimes other than kid- napping.
A comprehensive scheme for with dealing this of fense rests within the province Legislature, not the courts.35 The standard we apply does, today 34Note, A Rationale of the Kidnapping, Law of 53 Colum L Rev (1953); Note, Kidnapping Incidental to the Com- —Movement mission of a Crime Held to Support Insufficient Indictment Simple [¶] Kidnapping in California, U Pa L (1961); Rev 293 Code, Model Penal Tentative No pp Draft 11-20. 35 See, for example, arguments graduated on behalf of a kid napping Michigan statute both the (Committee Revised Penal Code Commentary 2205, 2206, pp 173, 174) and the Model Penal §§ (Tentative Code Draft No 212.1, 11-20). comments to pp See, § also, Note, A Rationale of of Kidnapping, the Law 53 Colum L Rev (1953). v. Otis Adams with however, discriminate some certainty between which ought conduct to be clearly punished under conduct which falls with- in the of other scope crimes.36
y. The standard applied this case facts of e.g., define “environment” To restrietively, mere geographic location victim, would be to return to the movement” “any concept. The rele- vant environment is totality of the surroundings, animate and inanimate. these criteria to
Applying the assault on Inspector we Dembosky, conclude that did not commit crime kidnapping. The movement of Inspec- tor did not remove him Dembosky from prison environment. As duties took him customarily throughout the entire prison, it cannot be said that him from moving the confused, threatening situa- tion in 4-block to the fifth floor hospital was inde- pendently significant from the assault.
The purpose of the movement was neither avoid detection nor to expose Inspector Dembosky While, Judge points out, Gillis this case does not involve of a robbery movement movement crime. victim rape, incident to a it does involve which, incident to a too, separate felonious assault is a Indeed, Michigan under law there is charge little reason to kid- napping where the movement is incidental robbery armed rape a and in concurrently. because punishable both of by those offenses are life sentences Michigan sentences, all exceptions (see 41), few run with only punishable where the other offense á likely sentence less than life that there is to be an issue whether movement incidental to the commission of that offense constituted the separate crime of Accordingly, Michigan kidnapping likelihood will be charged frequently for a street assault most where the assailant *20 objective, prosecutorial charg- failed to purpose consummatе ing kidnapping being aggravate penalty unsuccessful for the attempt. degree justify required of that should be a prosecution in beyond scope such a case is of this fn opinion (see 37). App 546 34
570 of He was moved to reduce risk harm. an increased a providing cooling-off the risk escalation first assaulted the inspector When he was period. “Can’t talk And, we about this?” when the asked, off, moved he to the group suggested they go Instead he was prison gymnasium. required to ac- company to the fifth the assailants floor the pris- hospital. on This case is not like a case street as- sault where the victim seized on a thoroughfare pulled into dark into alley automobile to prevent detection so that be assault can com- pleted greater privacy; such movement might significance have independent the assault.37 The evidence does not support contention that the movement to the fifth floor ex- hospital posed inspector to an increased risk of harm be- 37 People v. (1969), See Curtis App 720; 17 Mich Wilson v. State — — (1970), (255 Ind 817, 821); NE2d Lester v. State (1970), 9 App (266 ; Md 542 361) State, A2d supra. Samuels v. also, See, example, following California Appeals Court of holding, explication Daniels, eases on the presented facts movements of by following .victims assaults on might the street be found jury People td kidnapping: v. (1970), Chavez 4 App Cal (84 Rptr People 832 783); 3d Cal (1969), Ramirez v. 2 App Cal 3d (82 Rptr 665); People 345 Cal v. Thomas (1970), App Cal 859 3d (83 Rptr 879); People Cal v. (1971), Ellis 15 App (92 Cal 3d 66 Rptr People 907); Cal v. Moreland (1970), App (85 5 Cal 3d 588 Rptr 215). Cal People Contrast v. Shells (1970), 8 Cal App (87 Rptr 3d 210 Cal 255), granted; People leave (1970), v. App 4 Cal 3d 554 Schafer (84 Rptr 464). Cal See, also, People (1970), v. Williams (88 Rptr Cal 3d 894 Cal 1008) (victim P2d away premises told walk from store robbery occurred; where People kidnapping); held not to be v. Shirley (1970), App (88 Rptr 10 Cal 853) (secret 3d Cal con- accompanied by repeated finement beatings days and torture for three kidnapping). People held to be App v. (1970), Moore 13 Cal Cf. (91 Rptr 538); People 3d 424 Cal (1969), App Cal 3d Cheffen (82 Rptr 658); People Cal (84 Moore 3d Cal Rptr 771). Cal v. Timmons Rptr 4 Cal 3d Cal 648), 482 P2d Supreme approval the California Court indicated its of the decisions appellate of California intermediate courts Schafer See, and Samirez. also, v. Mutch 4 Cal 3d 389 Rptr 721, Cal 633). 482 P2d *21 v. Otis more difficult.38 made his rescue Adams and cause it men armed with knives. There no other were reason to or infer that suppоse no evidence, they use if a were less their knives confrontation likely occurred, at than at with rescuers had 4-hlock fifth landing hospital. Might floor not at 4-block of men presence milling hundreds of have rescue there more difficult? not one of Might made the three still perhaps intoxicated and nar agitated, assailants reacted on the cotized, spur of mortally the moment a taunting an challenge from unseen voice the milling throng? Under the circum stances we are satisfied that the evidence not does support finding that the had movement significance adverse to Inspector Dembosky independent continuing assault.39
The inspector was seized in Jackson Prison. It is an atypical place, armed enclosure that no one 38Our conclusion that the evidence would support finding inspector exposed movement him to an risk increased unnecessary harm appraise makes it facts terms of whether “substantially the movement risk of harm over that increase[d] necessarily present” (People Daniels, supra following text fn [emphasis supplied]) in the commission of Inspector the assault on Dembosky. 39 is important in this case to make clear what we do not decide as well as opinion what we hold so our is not misread. taking hostage may of a be kidnapping. the offense of In the hostage situation, if the victim is removed from the environment found, where he is generally removal will significance have ad- independent verse to the victim of the assault and the offense of completed upon will be his removal from the environ- ment. Even if removed, victim not so if the actor intends to remove him from the environment where he is found and commits going beyond an overt act preparation, mere attempted that would be If the money victim is seized with intent “to extort or thing” other valuable hold against the victim “to service may his will” that too though even has there been asportation (see no again, charged we note that Adams was not under portion the second our kidnapping statute). express Nor do any we opinion as person to when a of a seizure on the street attempted incidental to the commission or commission (e.g., another rape, robbery) offense separate becomes the offense of kidnapping; see fn 36 and authorities in fn collected 37 and supra, v. Lev following text fn 30. App through guarded enter leave without passing
can from one to an- building Movement entranceways. of the kidnap- other in Jackson Prison, purposes is not different than move- statute, significantly ping from one room to another a building, ment where, as the movement was under here, especially had guards surveillance armed who the enclosure *22 on the protected part and there was no intention Adams or other felons themselves to leave remove from the Inspector Dembosky prison.
The movement of did Inspector Dembosky make the apprehension felons less nor likely, did the movement make it less the in- likely spector would he released unharmed. It provided a cooling-off period him- Inspector Dembosky —which self wisely sought. provided im- time for these petuous, desperate men to reflect and to draw back from worse folly.
Adams’ and inde- highly dangerous conduct was prison prosecutorial fensible. The authorities are anxious to see that he is understandably severely Prison punished. like guards officials Inspector with Dembosky mingle frustrated, assaultive, des- An perate men. assault of them upon any is a ser- ious breach discipline; punishment should he clear, certаin, severe. unlike
Michigan, other jurisdictions,40 does not have a specific statute making assault aby prisoner e.g., See, Mutiny, United riot, carrying States: dangerous in- prison in a (ten-year strumentalities sentence), 1792; 18 USCA § Pennsylvania: Taking hostage by prisoner of a (life a sentence), Pa 4723.1; Purdon’s Stats Ann California has a series of stat- § dangerous utes: assault with weapon by a prisoner a not under a (3 years), life sentence 51A Ann Code, 4501; West’s Calif Penal § battery on (one noninmate years), 450.15; possession to three § deadly weapon (three years), 4502; holding hostage (five years), a § deadly weapon assault a by person with a § under a life sen- (death), tence §4500; offering guard Missouri: violence to or an- (two years), other inmate .460. to five Statutes, Missouri 216- Revised § v. Otis a or official crime prison guard on a carrying special upon Michigan, guard assault penalties. prison no than assault outside differently treated walls. The prison penalties maximum relative- are for the kind mild conduct ly aggravated indulged Adams and his confederates. That good reason to amend Legislature for code penal provide for an adequate sanctions aby assault It is not a prisoner. reason with- transforming, out legislative authorization, what under law present nothing more than may assault,41 felonious into which carries with it a possible offense life sen- tence.
Criminal with statutes, contrast the common not be law, may expanded to meet new problems be- yond the contemplation of the Legislature when the enacted.42
Reversed. (Stat MCLA Ann 28.277). 750.82 1962 Rev The maximum § § prison years. is four (Stat sentence MCLA 750.503 Ann 1954 Rev § *23 28.771). Where a prison, crime is judge committed may, the § discretion, in his direct that the sentence commence forthwith or at expiration the of serving. the sentence which the felon is MCLA (Stat 768.7a Ann 28.1030[1]). 1954 Rev § § 42At common law there awas clear im- distinction between false prisonment, kidnapping and extortion. imprisonment False was a common-law misdemeanor and consisted of compelling person a go to remain where he is or somewhere else against by an his will unlawful exercise or show of force. Perkins (2d ed), on p Criminal Law 171. aggravated imprisonment. However, Kidnapping was false it was also a misdemeanor at common or and consisted of law forcible abduction person stealing country sending a him of from and his own into (2d ed), p another. on Perkins Criminal Law 176. extortion, misdemeanor, of an Comon-law also a was the collection by an officer color of office. Perkins on Criminal unlawful fee under (2d ed), p Law 367. changed by general, have, These common-law crimes been stat- ute. by (MCLA In public addition to extortion officers 750.214 [Stat § injury Ann to 28.411]), it is also extortion to threaten Rev § father, husband, or child of person mother, wife, property the or or any advantage money pecuniary or another with intent to extort a (MCLA felony is Ann Rev it §28.410]); 750.213 [Stat § punishable by years’ more imprisonment not than aor fine of $10,000. says (Perkins Perkins on Criminal ed], p Law 372) [2d that statutory is money extortion the unlawful of extraction or other value by of a robbery. means threat not sufficient for Robbery taking person is the from presence the of another or in his money property of force or violence may subject other which larceny be the by of by putting (MCLA assault in fear 750.530 § 28.798]); and, Ann 1954 Rev dangerous [Stat if committed with § a any weapon or article used or in a fashioned manner to lead the person so reasonably assaulted to dangerous believe it be a weapon, to robbery. armed (Stat Supp is MCLA 750.529 Ann Cum § 28.797). § part kidnapping Under the second of our (see 1) statute “sei- of person a “money zure” with intent extort or other valuable thing” is apparent is development history from the the of these statutes kidnapping historically definitionally is a different crime from imprisonment robbery. false or extortion or kidnapping The a catchall, statute is a aggravating not means of penalties gap fill penalties in the law—so that as severe —to extortion, robbery those that can be for meted out armed and kid- napping assault on a pattern imposed can be involving for “extortion” not threatened may engraft properly relative. We not an additional provide by judicial interpretation any detention of person purpose though for extracting any advantage whatsoever is kidnapping meaningful asportation even there is no and no secrecy, or quality that where is “extortion” involved asportation required to kidnapping establish need not be of the kind required though present where extortion not even the offense is not charged part under second concerning of our statute kidnappings money “with intent thing”. to extort or other valuable foregoing difficulty trying All the shows the a make statute (enacted substantially present 1838, 1838, form in part 4, its RS 3, 17; ch present Title CL 1) for see fn citation § § designed purpose, upon assumptions one based certain definitional long established, job. do another may applied any taking not be of a regard hostage Randall secrecy (see without to whether State there [1960], Judge Gillis) by 137 Mont P2d cited [353 legally-significant asportation or a of the victim. liberty the construction of criminal statutes a court not at to common much developing evolve law as if same the court were prerogative law. legislature, courts, It is the punishable by
to define new crime. is no crime whatever “There except by statutory provision.” our In the Matter laws virtue of a Eugene Lamphere (1886), 61 Mich judiciary spirit “The doctrine denies the Federal which power forthrightly should not create crimes admonishes that we any- constituting from enlarge the reach of enacted crimes them *24 by incriminating components contemplated the thing less than the terms of Congress used in borrows words the statute. And where meaning of legal in which art centuries are accumulated the tradition cluster adopts the practice, it presumably knows People Otis v. by Gimjs, P. Dissent J. H. J. J., concurred. Bronson, H. P. J. Unlike (dissenting). my
J. Gtllis, I am satisfied that there Colleagues, was sufficient from which could jury lawfully evidence the find de- fendant Adams guilty kidnaping. Accordingly, I defendant’s would affirm conviction.
In
my view,
majority misapply
teachings
Levy
such cases as
NY2d 159
(1965),
of.
Lombardi
(256
NYS2d
793),
(1967),
NY2d
People Daniels
(282
NYS2d
519),
71 Cal 2d 1119
(1969),
Cal
(80
as
Rptr 897). And,
a result, the
reach
majority
what I consider to be an
absurd result. This case
is not one
which the
restraint
and forcible movement of Inspector Dem-
can
bosky
be characterized
solely as “incident
of ideas
body
that were attached to each
borrowed word
learning
meaning
from whieh it was taken
convey
and the
its use will
judicial
to the
mind unless
ease,
otherwise instructed.
such
ab
contrary
may
sence of
accepted
direction
be taken
widely
as satisfaction with
definitions,
departure
not
from them.” Morissette v.
246,
United States
US
240,
S Ct
96 L Ed
288, 300).
“If
gap
law,
right
there is
duty,
any,
and the
if
* * *
upon
fill
do
not devolve
the courts.
Crimes are not to be
created
inference.” United States v. Laub
475,
385 US
486,
574, 581;
534).
S Ct
17 L
Ed 2d
legislative
“I
properly by
intent
determinable
what was at
enactment,
might
time of
appear
century
rather
than what
a half
by hindsight.”
Company
later
Husted v. Consumers
Power
376 Mich
An
gist
the offense of
If we
sustain a
conviction
on evidence that
the victim of
period
confinement has been held a “substantial”
of time and
exposed
though
to “serious” risk of harm even
there was
as-
portation having significance independent
assault,
then most
every
capital
assaultive crime can
be the
offense of
if
prosecutor
charges
jury
so
and a
so finds.
acknowledge
have,
indeed, by
We
that we
our construction of
Michigan’s kidnapping statute defined the crime. But we have done
Michigan Supreme
so
the context that
the
defined,
Court has not defined
and,
the crime
unless
the statute would be void for over-
judiciary
pass
breadth.
is the
on
traditional
role of the
constitutionality
pre-
it,
possible,
of a
if
statute and to construe
serve
constitutionality.
its
*25
App by
J. H.
P. J.
Gillis,
Dissent
* #
*
integral
other
parts
crimes and
other
People v. Levy,
crimes”. case move 796). This does involve NYS2d at (People ment the victim incident v. robbery Levy, supra; People Daniels, supra); nor does it (People v. Lom incident asportation rape involve People Daniels, bardi, supra; supra). v. Miles
In NY2d 922), NYS2d the New York Court of Ap- peals Levy-Lombardi explained rationale fol- : lows Levy
“In and Lombardi and cases, especially in the Levy case, restraint and were parts of the crimes committed. The rob- ultimately bery and the could rapes not be committed in the planned forms without the limited asportations there involved. Indeed, any robbery, there a re- straint of ‘false imprisonment’ every rape there is a similar restraint often removal some limited is this sense. kind factual mer- ger with the ultimate crime of the preliminary, pre- paratory, concurrent action rule is de- signed recognize, thus prevent unnatural elevation the ‘true’ crime to be charged.
# # # the rule has no purpose “Moreover, ignoring as independent crimes alternative or optional means used committing another crime by which, the grav- and even ity horrendousness the means used, con- stitute and should constitute a separately cognisable offense.
[*] # # “In short, the Levy-Lombardi rule was designed prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial It was not designed to merge ‘true’ kidnap- zeal. pings into other crimes merely because the kidnap- Otis Adams Gillis, J. H. Dissent C. J. were used pings accomplish ultimate crimes of lesser or equal greater gravity.” (Emphasis sup- plied.) in this
Nothing record suggests to me an excess of zeal. Levy-Lombardi prosecutorial Accordingly, rule is inapposite. Adams’ my view, conduct could be considered lawfully “true” kidnaping.
In People Congdon (1889), v. 77 Mich 354, the Michigan Supreme Court noted that the gist of the offense under the kidnaping statute is the involun- tariness of the seizure. the United Similarly, States Supreme Court has stated that “the involuntariness * * * of seizure and detention is the essence very of the crime of kidnaping”. Chatwin v. United States (1946), US (66 S 233, 237; Ct L Ed 198, 203). On the facts as recited in the ma- jority opinion, appears clearly that the could jury find that Inspector had been Dembosky involuntarily seized. “the and even
Moreover,
horrendousness”,
gravity
Miles,
NYS2d
(297
23 NY2d at
at 922),
v.
distinguish
of Adams’
this case
conduct serves
Inspector Dembo-
from mere
imprisonment.
false
for a
his will
substantial
sky
against
was confined
was
risk of
exposed
of time. He
serious
period
subjected
harm.
was
Thus, Inspector Dembosky
is intended
abuses the
kidnaping
very
matter
not,
should
as a
prevent.
follows that we
Adams’
to characterize defendant
con-
law, refuse
least,
record,
duct
At
on this
kidnaping.
find.
jury
permitted
should
to so
I have discovered but
which factually
two cases
this case of Adams.
resemble
each,
prison
guard
will
seized and
forcibly
against
held
within the
inmates.
convictions of
prison by
Jury
were
law
affirmed
both cases
kidnaping
on the
App
the facts. The evidence was held
sufficient
justify
See State Randall
the verdicts.
Mont
P2d
State
Frodsham 1054),
Defendant’s other contentions are without merit. His conviction should he affirmed.
PEOPLE v. McINTOSH Right Preliminary 1. Criminal Law — of Confrontation —Use of Transcript Examination —Cross-Examination. transcript Use of a complainant’s preliminary examination testimony deprive at defendant’s trial did not defendant *27 right complainant of confrontation where the could not be located at time counsel, contrary of trial and defense allegation, competently defendant’s cross-examined the com- plainant preliminary at the examination. Preliminary Transcript— 2. Criminal Law —Use of Examination Duty. Prosecutor’s people The they must show that made a reasonable effort locate indorsed witness before the court can excuse permit people witness’s absence to use the witness’s testimony given preliminary at the examination. 3. Criminal Law —Witnesses—Indorsed Witnesses —Due Dili- gence. sufficiency people’s produce effort is a witness
[1-5, 8, [6] [7] Arrest, information as Am47 Am or search Jur, Jur 21 Am References 2d, Searches and Seizures Jur Larceny unlawful 2d, seizure, for Points Criminal Law 343 §§ possession weapons. without warrant on 140 et § 18. § Headnotes seq. et seq. suspension ALR