*1 THE COUNT IN SUPREME v. Dix cases, on an alternative In future the trial court must rule conditionally party appeal must motion for a new trial and a ruling generally connection, from an thereon. In see adverse Montgomery Duncan, 243, 85 Ward & Co. v. 311 U.S. L.Ed. (1940); Moore, Practice, 5A Federal Pars. J. S.Ct. Wright Miller, 50.13-50.17; Federal and A. Practice and C. Procedure, 2537-2540 §§ judicial system, judge under note our who We longer presiding judge
conducted of the trial of no this case is Twenty-first inappropriate Judicial deem it District. We try superior judge pass court who did not for a now case upon alternative motion defendant’s new trial. present case, Under circumstances we have justice requires reached the conclusion that afforded an asserted that defendant be opportunity appeal any to have considered on of law which he him errors contends entitles to a new Accordingly, judgment Appeals, trial. of the Court of judgment entry n.o.v. and reverses remands cause for verdict, judgment plaintiffs on the is affirmed with direc- entry judgment per- of such tion that be advised, except mitted, appeal thereto and if so therefrom upon appeal obtain a review of the errors for which he entitled to a new trial. asserts to order of
Affirmed with directions as remand. BILLY STATE OF NORTH CAROLINA v. C. DIX No. 19 (Filed January 1973) Imprisonment 1; Kidnapping 1— 1. False and false im- prisonment defined taking Kidnapping the unlawful being against by force; human illegal his will false restraint of a his will. — jail Kidnapping part an-
2. removal from one § 1— other There was not a sufficient to constitute the offense jailer gunpoint go of the front door of the where defendant forced a jail cells, a distance of some 62 FALL TERM v. Dix *2 compelled jailer prisoners, feet, the to release and locked the three jailer in a cell. dissenting.
Justice Huskins Higgins dissenting opinion. joins Justice the Appeal of defendant the decision Court Appeals (14 737), no App. which found N.C. Exwn, Judge, trial the December error his at before Rockingham. of Session indict- Defendant convicted of charged unlawfully April ment on 19 he did which feloniously “kidnap, seize and detain H. Crowder C. by carrying forcing Crowder, his will said H. assist- C. Rockingham County jailer, from floor ant a first section jail point pistol a lower thereof at the floor section locking jail. cell in From a sen- into a barred said ...” [him] subject specified credits, years, 12-25 time defendant tence of Appeals affirmed, appealed. The Court of two members hearing dissenting. concurring, appeals to panel one Defendant right 7A-30(2) as matter under G.S. this Court Attorney Attorney Morgan, Assistant General General Satisky the State. Gwyn appellant. Morgan
Gwyn, & defendant SHARP, Justice. sufficiency question is of the evi-
The determinative facts defendant’s motion for nonsuit. The to withstand dence to decision are controverted. material April (aged 23) was incarcerated On 1970 defendant County. prison camp in Guilford State’s McLeansville totaling days begun serving There, earlier, four he had sentences years Superior imposed
four Rockingham County had been preceding noon About week. escaped. prisoners three April defendant and other Rockingham from the Before defendant was removed Bobby “buddy,” County jail promised he had Wentworth get Brown, him. 1:30 a.m. that he would come back and About April on the front door defendant knocked on 19 jailer on jail, Crowder, the assistant and H. C. Wentworth gun” face, in his duty, opened the Defendant “threw a door. IN THE SUPREME COURT v. Dix up, ordered got said, him turn around his hands “You my you get three of I I buddies and will kill if don’t them.” back,” a 25-caliber With automatic “stuck in defend- [Crowder’s] through ant marched him from the vestibule the office and gave steps into a hall from which two access lower cell gun Keeping head, blocks. back of Crowder’s repeating him, compelled his threats to kill defendant Crowder open Bobby the cell-block After Brown and other door. two prisoners out, came defendant forced into the cell. Crowder From door to cell the front defendant had forced Crowder to walk a distance of 62 feet. Crowder testified that after he the cell entered *3 paces made about three backward and then advanced on him
saying, up you, you”; gun I “Damn will kill that then held the snapped it; gun go to Crowder’s head and did not locking off and defendant backed out. After the cell block de- companions fendant and his three fled. minutes later Nine trusty, Crowder was released a who heard his cries for help. summary, brief testimony defendant’s tended to show: He broke committing into the with “full intention of aiding abetting
crime of escape,” helping prisoners kidnapping
but no intention of Mr. Crowder. He never any way. only threatened in purpose Crowder His gun “putting him, him” to was scare but he told him going anything he was not to do to him but lock him in the cell. keys He left the to the cell block on the desk the office. In opinion defendant’s was the distance from the door to the cell front only captured Virginia feet. 50 He was of State day. about sundown same Kidnapping, which law, awas at common misdemeanor in this By State is one of most serious of crimes. statute felony punishable by it is imprisonment made a for a term of years or ; for life the discretion of (1969) G.S. court. 14-39 Bruce, 174, State v. (1966) 268 ; N.C. 150 2d 216 S.E. State c. 536, 263 870, appeal N.C. 139 S.E. sub. dismissed nom., 22, 16, (1965) 382 15 ; U.S. L.Ed. 86 227 S.Ct. State Kelly, v. (1934). Carolina, 206 N.C. 175 294 S.E. North however, not, by one statute, is few states which has redefined offense, its associated common law Note, imprisonment. See (1961). false 110 U. Pa. L. Rev. 293 respect “Thus the common law with and false 493 TERM 1972 FALL Dix State v. Ingland, 278 v. State the law of this State.” imprisonment is generally (1971). See 42, 50, 178 S.E. N.C. Perkins, (1946); Criminal Burdick, 387-389 Law Crime §§ Law 129-136 his will State v. unlawful 180 S.E. [1] 184 S.E. illegal N.C. In our Ingland, supra; taking 2d 115 348, 126 restraint of a force, threats, 2d 845 decisions, (1971) cert. S.E. (1971) 2d 118 or fraud. ; away denied, 404 (1962). False Bruce, v. State v. defined Barbour, a supra; human will. State U.S. Murphy, generally being 280 N.C. v. Luns (1972) against Gough, ; that the unlawful hold ford, (1879). “Our decisions N.C. imprison being against false his will is human detention supra Ingland, ment, kidnapping.” State carrying away the differentiat The element 2d at 582. ing offenses. the two factor between English defined authorities and some other Blackstone stealing
kidnapping man, woman, as the “forcible abduction sending country them their or child from own origi- Thus, Blackstone, *219. into Commentaries another.” contemplated. It very soon nally, substantial could however, and isolation apparent, “that distance became realm, not essen- and that even distance was in the be achieved e.g., friends', isolating victim from the law and his tial *4 vicinity.” Penal Model in the immediate confinement ‘secret’ 11, 1960). In (Tent. this 212.1, Draft No. Comment Code § foreign early transportation to a country it held was necessary Am. Jur. country part of offense. 1 this not a was Kidnapping (1962). 1 Abduction and 2d Bishop’s kidnapping, “false definition of aggravated by conveying imprisoned other person to some 1923), often (9th has Bishop, 2 Law ed. place,” Criminal 750 Ingland, approval v. quoted this Court. See State been 540, supra 583; Lowry, at 51, supra 2d at State v. 178 S.E. 352, 2d 874; Gough, supra 126 S.E. 2d at State v. 139 S.E. 867, 408, 417, Harrison, 59 121; v. State at 870-71 recog- subject Every on the (1907). decision of this Court carrying restraint, taking, unlawful in addition to nizes from the asportation away, transportation, or other is an essential to some he is seized place where Midgett State, v. kidnapping. Aso see law of common element IN THE 494 SUPREME COURT 26, 39-40, 209, (1958). 216 Md. 2d 216 An unlawful A. purpose detention for the victim will constitute until has in fact been accomplished. supra. Ingland, v. specific question presented appeal is whether away” “conveyed
Crowder place” was “carried to some other as these terms are used with reference to as an element kidnapping. This Court has heretofore decided no case de- fendant asported unlawfully has restrained from one part building in which another, seized to was or from another; one room to nor attempted has it ever “to calculate requisite
the to asportation in terms of linear measurement” or “place.” People delimit the Adams, However, word App. See v. 34 Mich. 546, 568, 19, 2d N.W. v. Lowry, supra, ters, appears bearing there a dictum these mat- repeated which we have often so decision this case requires its examination. supra, v. forcibly defendants took a hus- band and wife public from their automobile street in Mon- roe and gun-point yards marched them at to the home of they Williams, R. In hostages where were held as for 3-4 hours. disposing of the defendant’s contention that G.S. 14-39 unconstitutionally vague overbroad, Justice Clifton L. Moore, writing opinion Court, stating for the after the com- mon law definition and following added the comment following support cited the authorities to it: fact,
“It is the
not the distance of forcible removal of the
victim that
2d,
constitutes
1 Am. Jur.
Abduction
Kidnapping,
18,
172;
p.
People Oganesoff,
s.
App.
81 Cal.
709,
[(1947)]; People
In the court to be gained In home of his defendant admission to the case the go ruse, room up, her her to victim tied forced raped wallet, her and then room until found her robbed she rob- per- kidnapping to commit The defendant convicted of her. Code, bery Penal under 209 of the California Section “any penalty imposition of the death mits robbery” any commit kidnaps individual to or carries who bodily (West Penal Code if 1970). harm. Cal. the victim suffers pertinent part, 207 defines Section taking any him person within the State forcible county part of country, or into another another “into 1970). (West county. Penal . . .” Cal. Code same legis- argued appeal, On Wein dwelling rooms in between lature never intended Court, how- Supreme kidnapping. The California to constitute *6 IN THE SUPREME COURT Dix State v. ever, authority People on Chessman, supra, of v. reaffirmed its previous interpretation by holding any of the statutes that move- challenged ment sufficed for a conviction under the sections. Thus, foregoing analysis appears it that the au- support Lowry thorities cited of apothegm not, fact, do support proposition any satisfy that will requirement common kidnapped conveyed law that a victim be from one years place. to some other It is here noted that 18 decision,
after the Chessman when time had demonstrated of apothegm, the unwisdom the Chessman-Wein the California Supreme previous confessed error in its construction of 207 and 209 of the Sections and Wein. 910, Penal Code and overruled Chessman People Daniels, supra 1139-40, v. at Rptr. 80 Cal. People Green, 459 P. 2d at also App. 238. See v. 3 Cal. Rptr. 491, (1969). 83 Cal. Lowry repetition apothegm the Chessman-Wein that fact, “it is the not the distance forcible removal of the kidnapping” victim that constitutes has been reiterated in our subsequent Hudson, See cases. State v. 281 N.C. 187 S.E. ; (1972) supra; Murphy, Barbour, supra; State v. Ingland, supra; Penley, State v. State v. 178 S.E. 2d 490 Ingland, early English it is said that common law
requirement transportation country to another had been so “any carrying away relaxed that now is sufficient. The distance Lowry, supra.” the victim is carried is immaterial. Ingland, supra at 583. Ingland The State’s victim, evidence tended to show: The engaged defendant and group were others members of shotgun criminal accompanied by defendant, activities. The armed with a others, knife, three one ushered the vic- (who suspected being informer) tim from defendant’s They home and into an automobile. drove a wooded area yards where the victim was “walked” 15-20 into the woods and ground, driyen laid face down into which stakes were causing so that he could not move without his throat to be guard pierced. position He hours, remained under in that for 4% after which he was released. The defendant’s defense was voluntarily accompanied group into woods misunderstanding out talk he left them there and appealed never returned. He conviction FALL TERM 1972 Dix
State v. judge this Court awarded a new trial because the Yes in said jury’s question, answer to the “Would forcible detention be *7 kidnapping?” classified the same as act of This was error pointed because, out, heretofore as in this forcible deten- asportation imprisonment, tion without is false not gave In Barbour, defendant, hitchhiker, the a they a ride in his truck. After had traveled four miles the de- put fendant to throat, a knife the victim’s told him he was an escaped place. convict and ordered him drive to a certain After driving ten throat, miles the knife at his the victim sud- denly jerked filling the truck to the left the entrance a approaching station and in open, of an front car. The truck door flew affirming opinion, and the defendant fell In our out. Bar- apothegm bour’s conviction of appears the Chessman-Wein quotation portion Kidnapping as a from 51 C.J.S. 1(b)(8), (1967). quotation at 502-08 That had reference kidnapping Lowry statutes in some states. was cited as being quotation. in accord with the by Murphy, In fraud, defendant lured from a his victim parking adjacent public path, lot street, to a down a feet fence, under a then tied, 60 feet into the woods. There he kidnap- tortured and left his victim dead. for His conviction of ping upheld. frightened 15-year- Hudson, In a girl leaving home, old retarded entrance into her to which he had obtained by fraud. He took her to his house trailer where he injured permanently abused and He then her. drove her to a river bank where he abused In further and her for her left dead. Penley, highjacked prison victim was forced drive a for bus more than mile. Ingland, Murphy, Lowry Hudson, is cited as author- ity kidnapping, “any for the statement in ” sufficient. ‘The distance the victim is carried immaterial.’ Lowry literally, amplified statement,
Taken in the later asportation above, decisions referred to make the would test for larceny. “[A] in the the same as in removal from bare goods though thief, where are found carry- asportation them, does not make with ing away.” off is a suffcient Craige, (1888). Our re- no none has called to our search has disclosed case—and been common attention—where a not been redefined law state which has scope thus statute has extended Murphy, Lowry, Ingland, Barbour, crime. The IN THE SUPREME COURT Dix Penley, and Hudson miniscule. It did not was substantial —not and, in no decided relate such narrow rule case Court, support will the facts it. pointed
As earlier out in the of the California discussion cases cited Penal California Code Sections carrying away made an essential ele- both victim kidnapping. However, ment of the crime of Chessman statutory Wein the their words of were “drained of meaning.” plain Note, U. Pa. L. Rev. See Since some forcible movement of incidental to the commission many crimes, a number inevitable result was prosecutions purpose were for the sole instituted life securing crimes death sentence or though subject penalties to such severe this even —and *8 movement had created no risk to the victim distinct from that accompanied. in the which it At the time it con- inherent sidered Cotton v. crime Superior Court, 459, Rptr. 56 Cal. 2d Cal. 65, (1961), the had P. 2d 241 court become aware California of this situation. Cotton, supra, a group pickets In a of AFL-CIO invaded inducing ensuing camp purpose for
labor melee, persons the of strike. the dragged ground, around, pushed the were yanked toilet, A struck chased and assaulted. cook was feet, ground head, dragged thrown to the and kicked. the conspiracy, rioting, kidnap- pickets The ping. for and were indicted kidnapping the The court ordered count dismissed since only asportation appeared all “to be incidental to the assault and rioting.” 68, Rptr. at P. 2d at 244. All Id. at Cal. said, “a laws, court should receive sensible construction” the guilty pickets of “could in a and hold result every prosecuted permit assault would to be as a rule which slightest movement Id. . was involved.” kidnapping . . [if] 2d at Rptr. at 364 P. 244. 465, 15 at Cal. Eight years Cotton, specifically after Daniels the court repudiated construction of Penal its former Cal. Code § Daniels, abrogated rule. In the defend- and the Chessman-Wein alia, were, and convicted under Penal inter indicted Code ants separate three different women on three for robbery, suffering bodily of purpose victims occasions raped apartment robbed after in her victim was harm. Each another, from one room being distances forced walk FALL TERM 1972 varying from 18 to 30 Supreme feet. The California re- versed conviction defendants’ Under rule, the ChessmamWein these forced movements clearly Daniels’ victims would have constituted supported a conviction of fact which —a acknowledged. the court said, It however, that out of the fer-
ment caused
that rule “has arisen a current of common sense
application
the construction
defining
of statutes
the crime
kidnapping.” People
Daniels, supra
Rptr.
80 Cal.
reaching
purpose go beyond was held to incidental restraint *9 kidnapping, Soders, and to constitute see State v. 106 Ariz. ; People (1970) Thomas, App. 471 P. Cal. Rptr. (1970).) 83 Cal. People Fain, App. In Rptr. 18 Cal. Cal. (1971), consider, a case similar to the one we now two armed charge
prisoners deputy county jail forced the sheriff in of the open to mates. The cell and release doors defendant and three other in- proceeded then six inmates to the first There floor. they Deputy open door, forced to Wilson the outside they escaped. escape Defendant was indicted for and for kid- napping Deputy Wilson, whom he had forced to move from the booking “only door, area to the a distance of The a few feet.” guilty pled escape kidnap- was convicted of Daniels, Applying ping. the rule laid down the California THE SUPREME COURT IN Appeals kidnapping. The reversed the conviction of
Court Officer forced to make “was inci- movement which Wilson substantially escape dental to the and did not increase risk necessarily present in that offense. of harm over and above that Rptr. Id. at at 565. . . Cal. People Adams, con- supra,
The case also involved prison prison finement of he worked. official within the where During prison and several other disturbance the defendant customarily prisoners inspector armed an whose seized duties through prison. prison took him the entire He and three other accompany prisoners about officials were forced to three armed hospital. they prison 1500 feet to the during There held hours were 5% prisoners’ to see certain which the demands be allowed prison reporter prison newspaper The officials and a were met. were Thereafter the defendant was officials released unharmed. Michigan which, kidnapping in-' indicted for under-.a statute required terpreted court, an when alleged secretly confined. of the had not been Michigan sup- Appeals evidence would not held that the reaching port this decision the conviction court reasoned: (1) atypical place” prison A “an for a building prison to another walls
movement from one within significantly from from one room is not different movement building. to another in a any
(2) inten- nor the other felons had Neither defendant removing inspector prison, and his removal tion of from rioting, prison hospital “4-block,” of the any of harm. exposed him to increased risk had not movement of the (3) statute a “[U]nder signifi- unless it has victim not constitute does And, independent the victim is re- of the assault. unless cance consequences found, the environment where he is moved from the sig- independently to the victim are not itself movement movement not manifest the assault —the does nificant from injury punishment separate crime —and commission kidnap other than founded crimes must be victim 2d at 30. ping.” Id. at N.W. requisite asportation for cannot be
(4) The *10 measurements; nor can “environ- linear calculated terms may restrictively. of 50 feet An defined ment” be FALL TERM 1972 expose in some precisely cases the victim to those which abuses designed are prevent; statutes cases, in other an may of 500 feet alter the victim’s situation not at “The totality all. relevant environment of the surround- ings, animate and inanimate.” Id. (5) A concept caloused potential creates the for prosecutions abusive virtually every since imprison- false ment, assault, battery, rape, robbery, jail delivery escape or will involve some movement or intentional confinement. When by kidnapping, definition overruns other crimes for which the prescribed punishment severe, prosecutor is less has the arbitrary “naked power” to choose the crime for he which prosecute. will Johnson, Id. at N.W. at 26. See also Super. 414, 422-23, N.J. 170 A. 2d inveighs Reason (5) heavily against No. the Chessman- rule, Wein generally recognized for it it, examples under prosecutions abusive this, have been common. The for blame however, placed exclusively “cannot be prose- at the door choosing cutor for indict especially When outrageous crime is public committed there will be a clamor for penalty the extreme asking which law permits, and it is public too much of juries pressures.” officials to resist such 212.1, Model Penal (Tent. Code 11, I960). Comment Draft No. foregoing As the author of the concluded, comment the maxi- penalty any mum crime, outrageous, however should be de- termined prosecutor’s applicable reference to the statute and not prosecute decision “outrageous whether to for the penalty higher crime” or for if the and there has any movement, (See slight, been however in connection with it. Note, (1962) suggested Cal. L. S. Rev. where it is might prosecutor such unbounded protection issue.) equal discretion in the raise an [2] Although Daniels and Adams involved statutes, con struction of presented very these problem statutes raised appeal, convincing and we find the rationale which Michigan the California and the movement and Here, courts decided those cases. subjected
confinement to which defendant cry Crowder is a far from common law the basic concept of which asportation. never included a mere technical Crowder was not carried from the environment in which found; jail, he remained inside he had in charge. forcibly Defendant came to take another *11 THE IN SUPREME COURT prisoner custody asport In effect- from lawful Crowder. —not ing escape of not defendant “walked” a distance Crowder cell, more than 62 feet locked him in a from which he was by trusty heard his released nine minutes later help. who cries purely incidental to defend- The 62-foot jailer jail delivery and to the rescue ant’s assault significance accomplished. It had no other and created which he no risks to Crowder fendant escape which were not inherent in the de- engineered. grave risks conduct, course, created criminal
Defendant’s Upon testi- he involved. his own for himself and all those whom mony felony upon a a firearm he committed the of assault with (G.S. (1969)) and the misde- enforcement officer 14-34.2 law abetting aiding prison- of false meanors felony jail. may escape He also have committed ers of (1969)). hold, how- aiding (G.S. escaped 14-259 felons We support ever, his conviction kid- the evidence will overruling defendant’s Superior erred in napping. The for nonsuit. motion Appeals
The decision of the Court Reversed. dissenting.
Justice Huskins fully expressed docu My are views (1972) ; Hudson, 100, 187 2d 756 v. 281 N.C. S.E. mented in State ; (1971) v. Murphy, 1, State v. 280 N.C. S.E. State (1971) ; Pen 42, and State v. Ingland, 2d 577 178 S.E. 278 N.C. ex (1971). Like are views ley, N.C. Barbour, v. 278 N.C. by in State Bobbitt pressed 449, Justice Chief foregoing sup are (1971). The decisions 2d 115 180 S.E. including Court, v. State of this decisions ported earlier Lowry, (1966); v. 2d 216 150 S.E. Bruce, 268 N.C. ; Gough, (1965) 257 N.C. 2d 870 139 S.E. 2d 118 263 N.C. Kelly, ; (1962) and State 126 S.E. 175 S.E. I law which down the majority opinion waters Here, the un- uncertainties and creates
regard in this State as settled common law definition The dimensions. known unlawful “the defined as It has been North Carolina. obtains away force and taking FALL TERM 1972 State v. Allen supra. force use of instead of will.” State v. fraud Gough, effecting is still equivalent supra; of actual and threats and intimidation are Bruce, supra. perfectly apparent It State v. force. unlawfully jailer force took and carried *12 against majority says defendant “took” the and his will. The enough.” away “carry much him How is victim but didn’t question enough? future more often that is answered in decisions, the definition of will the more indefinite become. agree victim, mere technical such
I that a moving kidnapping; room, him about in the but as same will, un- where, lawfully here, force and the victim is the free environment and carried taken elsewhere, cell located he was found and locked in a “merely the “en- than technical” and more not the environment in which after abduction vironment” the victim was in the legal it, principles enunciated I found. As see proper majority applied in a opinion, while sound when applied to the facts this case. setting, not be factual should respectfully stated, I dissent and vote For the reasons Appeals. affirm the decision Higgins dissenting joins opinion. in this Justice ALLEN, JR., LEROY RAY CAROLINA v. PAUL OF NORTH STATE BRYANT, and JOE EARL KING No. 71 January 1973) (Filed 26 bag plain money in defendants’ view 1. Searches Seizures 1— — admissibility automobile breaking entering larceny was no case there In a bag money concerning where evidence admission of error in the given permission to enter an officer was evidence that there was glove registration from the obtain the card automobile to defendants’ compartment bag any search, time, without observed the and at its contents. stop authority to motorist Arrest and Bail 3—officer’s 2. occupied by authority stop defendants the vehicle Officers had regis- validity presence license and of the driver’s to determine 20-183(a); card. G.S. 20-57. tration G.S.