STATE OF OREGON, Respondent, v. CLYDE EPPS, Appellant. STATE OF OREGON, Respondent, v. DON AZEVEDO, Appellant.
No. C 77-05-07062, CA 9138; No. C 77-05-07063, CA 9222
Court of Appeals of Oregon
Argued April 25, affirmed October 16, 1978
reconsideration denied December 5, 1978, petition for review denied January 23, 1979
285 Or 73 | 585 P2d 425
(Cases Consolidated)
Jerard S. Weigler, Michael E. Haglund, and Lindsay, Nahstoll, Hart, Neil & Weigler, Portland, filed a brief amicus curiae for appellants.
TANZER, J.
Defendants appeal from their convictions of kidnapping in the second degree. They are agents of a California surety company, Cowboy Bail Bonds, which entered into a bail agreement with one Morrow to effectuate his release from incarceration in Bakersfield, California. In violation of the terms of the agreement, Morrow then left California without the consent of either the surety or the court and took up residence in Portland, Oregon. In 1977, he was pursued and captured by defendants in Portland and returned to the custody of the court in California. It is that taking which is the basis of the present kidnapping conviction.
Kidnapping in the second degree is defined by
“A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another‘s personal liberty, and without consent or legal authority, he:
“(a) Takes the person from one place to another * * *”
Defendants admit they took the victim from one place to another. Defendants contend that the taking was not “without consent or legal authority.”
I. “WITHOUT CONSENT”
First, the defendants assert that the taking was not “without consent.”
” ‘Without consent’ means that the taking or confinement is accomplished by force, threat or deception * * *”
There is evidence that defendant Azevedo burst into a room where the victim, Morrow, was employed. Azevedo demanded to know whether Morrow was Steven Morrow. When Morrow asked Azevedo why he wanted to know, Azevedo grabbed Morrow‘s arm and insisted that Morrow identify himself. Morrow denied
Morrow broke loose. He ran out of the office and down the street. Azevedo pursued Morrow on foot while Epps chased him in a рickup truck. Defendants eventually cornered Morrow. They pulled Morrow‘s hands behind his back and handcuffed him. Defendants then pushed Morrow into their pickup and started driving toward California. After about an hour and a half, Morrow complained that it hurt his shoulder to have his hands cuffed behind his back. Defendants took the handcuffs off of Morrow, placed his hands in front of him and put the handcuffs back on. Defendants also placed leg-irons around Morrow‘s ankles. Morrow was not аllowed during the 18-hour ride to stop or make any phone calls. At no time did Morrow consent to being handcuffed or restrained or to accompanying defendants back to California. Defendants took Morrow to the Kern County Jail. The recited evidence is sufficient to establish, in the words of the statute, “that the taking or confinement [was] accomplished by force.”
Defendants contend that Morrow had given his consent to be taken into custody if he failed to nоtify the bondsman of a change of address or employment by having signed a bond agreement which included a provision to that effect. Whatever legal effect such a contractual provision might have, it does not constitute consent as that term is used in the statutory definition which, as it applies to this case, is based solely upon the use of force in the taking.
II. “WITHOUT * * * LEGAL AUTHORITY”
A. The Applicable Statute
The defendants next contend that the taking was legally authorized. Obviously, with “legal authority” means authorized by law. The warrantless arrest in
“The arrest of a person may be lawfully made also by an officer or a private citizen without a warrant, upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year, but when sо arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in ORS 133.803; and thereafter his answer shall be heard as if he had been arrested on a warrant.”
Under this statute, the defendants were legally authorized to arrest Morrow and take him before a judge or magistrate with all practicable speed for legal proceedings tо determine if Morrow was in fact the person wanted and if the charge against him was extraditable. The acts of the defendants in taking Morrow straightaway to California were not authorized by the statute which controls the legal authority to arrest a person wanted in another state. Therefore, the “legally authorized” exception to the kidnapping statute provides no excuse for defendants’ conduct.
B. The Defendants’ Theory
Acknowledging that there is no statute authorizing the private arrest of a person wanted in another state, the defendants contend, and our dissenting colleagues seem to agree, that legal authority for the kidnapping exists by virtue of common law doctrine which is still valid in Oregon. Their contention is based upon the leading case of Taylor v. Taintor, 83 US (16 Wall) 366, 371, 21 L Ed 287 (1872) (decided, in historical terms, a short time after the more celebrated case of Dred Scott v. Sandford, 60 US (19 How) 393, 15 L Ed 691 (1856),
“When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They mаy pursue him into another State; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. * * *”2
The defendants contend that Oregon adopted the common law rule in 1864 by enactment of a statute which, in its most recent form, former
“For the purpose of surrendering the defendant, the bail, at any time before the forfeiture of their undertaking and at any place within the state, may themselves arrest him or, by a written authority indorsed on a certified copy of the undertaking, may empower any other person so to do.”
We see nothing in the words of former
“These powers would be far-reaching and abusable enough in the hands of proper and responsible police authorities. The same powers in the hands of bondsmen is shocking and frightening. The bondsman is subject to less controls and is possessed of greater powers than is the law enforcement officer who would exercise counterpart functions. Hence he can act as a de facto state agent without being subject to the usual safeguards ordinarily surrounding the conduct of those officials.
“When a defendant who is free on bail flees from the jurisdiction of the court under whose control he is, no matter how metaphysically, the bondsman may pursue, arrest, and return the truаnt. The bondsman‘s powers conflict with the traditional safeguards that protect all criminally accused during the process of extradition. He can arrest and return a defendant in a summary manner beyond the powers of peace officers who must follow the procedures of extradition. And yet he is acting as part of the administration of the official criminal law apparatus of the state when he is doing this.” (Footnote omitted.)
If ever the common law rule existed in Oregon, it is no more. In 1973, as a part of a comprehensive revision of the code of criminal procedure, the legislature repealed the entire statutory scheme regulating the traditional bail system in Oregon and enacted in its place a security release system eliminating reliance upon the extraordinary powers of bail bondsmen. At least three observations relevant to that legislative action are significant here: (1) There was a complete abandonment, not a reform, of the bail system; (2) former
From this, the defendants would have us conclude as a matter of statutory construction that the repeal of a statute codifying a common law rule is not an abandonment of the common law principle and that Taylor v. Taintor still lives. We conclude to the
Because the defendants took the victim forcefully from one place to another without legal authоrity, the conviction must be upheld.
Affirmed.
BUTTLER, J., dissenting.
The majority would have us believe that this court, rather than the legislative assembly, determines what conduct is subject to criminal sanctions, and that we are the repository in which society‘s concepts of justice and decency are stored only to be broken out when “contemporary requirements of civility” 36 Or App at 524 call upon us to exercise our grace. If I thought we had such authority to apply natural law concepts in determining what acts constitute a crime today, although they did not yesterday, I would agree with the majority. But I entertain no such thoughts, and therefore I respectfully dissent.
Defendants appeal from their convictions of kidnapping in the second degree. The issue is whether out-of-state bail bondsmen have “legal authority” within the meaning of
The institution of bail dates back to pre-Norman England. See Note, Bail: An Ancient Practice Reexamined, 70 Yale L J 966 (1961). Under the early common law, a bondsman not only exposed his own property to loss if the principal failed to appear, but in some instances was subjected to the same punishment that would have been inflicted upon the prisoner. 2 F. Pollock & F. Maitland, The History of English Law 589-90 (2d ed 1898 & reissue 1968). In light of this exposure, the common law recognized the bondsman‘s right to pursue and recapture his principal without resorting to legal process.
This rule was recognized in this country, and was stated as follows in the leading case of Taylor v. Taintor, 83 US (16 Wall) 366, 371, 21 L Ed 287 (1872):
“(a) Takes the person from one place to another; or
“(b) Secretly confines the person in a place where he is not likely to be found.
“(2) It is a defense to a prosecution under subsection (1) of this section if:
“(a) The person taken or confined is under 16 years of age; and
“(b) The defendant is a relative of that person; and
“(c) His sole purpose is to assume control of that person.
“(3) Kidnapping in the second degree is a Class B felony.”
“When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; аnd, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. * * *”
Most of the states, including Oregon, followed the common law rule. Oregon codified it as early as 1864, and in its most recent form, former
“For the purpose of surrendering the defendant, the bail, at any time before the forfeiture of their undertaking and at any place within the state, may themselves arrest him or, by a written authority indorsed on a certified copy of the undertaking, may empower any other person so to do.”2
In 1935, the Oregon Attorney General expressed the opinion that a California bondsman was authorized to arrest his principal in Oregon and return him to California without resort to legal process, relying on the common law rule and the Oregon statute, noting that California law authorized such a bail bond with those attendаnt rights. 17 Op Att‘y Gen 523-24 (Or 1934-36). Judicial recognition of the common law in Oregon appears in State v. Broom, 121 Or 202, 209, 253 P 1042, 253 P 1044 (1927), quoting Taylor v. Taintor, supra.
While there is no dispute with respect to the bail‘s rights at common law, or under ORS chapter 140 (particularly
I do not agree with either contention. There was nothing in ORS chapter 140 which indicated that it applied to foreign bondsmen. It encompassed, like its 1973 successor (Oregon Laws 1973, ch 836), a pre-trial release procedure for persons charged with a crime in Oregon. Foreign bondsmen‘s rights were governed by the well-recognized common law rules set forth in Taylor v. Taintor, supra, and recognized by the Oregon Supreme Court in State v. Broom, supra, and by this court in Umatilla County v. Resolute Ins. Co., 8 Or App 318, 493 P2d 731, rev den (1972).3 The Attorney General had so held as long ago as 1935, and the legislature took no action to abrogate the common law as so applied. Those were the ground rules prior to 1973, and the question is whether the repeal of ORS chapter 140 changed them such as to make defendants’ conduct criminal.
I cannot understand how the repeal of ORS chapter 140 had any effect on foreign bondsmen, who were not covered by its provisions. But even if ORS chapter 140, or
“* * * The legislature is presumed to know the common law before the statute was enacted, and so the repeal of a statute, even though declaratory of it, revives the common law as it was before the statute.”
See also Makin v. Mack, 336 A2d 230, 234 (Del Ch 1975).
Thus, the Oregon Tax Court has held:
“* * * When, as in the field of taxation, the legislature merely supplants the common law procedure with a statutory one arriving at substantially the same remedial result, the common law is only in abeyance and then only to the extent that the statutory procedure actually takes its place. [Citation omitted.]” Woodburn v. Domogalla, 1 OTR 292, 348 (1963).
It does not appear that the legislature contemplated the situation we have at bar. Thе fact that former
The state‘s contention that the extradition procedures are the only ones available to foreign bondsmen overlooks the fact that those procedures were available prior to the repeal of ORS chapter 140, and prior to the Attorney General‘s 1935 opinion, yet the state does not contend that foreign bondsmen were required to go through extradition procedures prior to the repeal of ORS chapter 140 in 1973.
Moreover, the application of the kidnapping statute (
“* * * ‘The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.’ United States v. Harriss, [347 US 612, 74 S Ct 808, 98 L Ed 989 (1954)], at 617, 98 L Ed at 996; Bouie v. Columbia, 378 US 347, 12 L Ed 2d 894, 84 S Ct 1697 (1964); Wright v. Georgia, 373 US 284, 10 L Ed 2d 349, 83 S Ct 1240 (1963).”
I would hold that defendants, as foreign bondsmen, had “legal authority” to take their principal into custody in Orеgon for the purpose of returning him to California in accordance with the terms of the Bail Agreement which was valid under the law of California.8 Accordingly, their doing so did not constitute the crime of kidnapping in the second degree as defined in
Thornton and Lee, JJ., join in this dissent.
Notes
“If a person has been admitted to bail in another state, escapes bail, and is present in this State, the bail bondsman or other person who is bail for such fugitive, may file with a magistrate in the county where the fugitive is present an affidavit stating the name and whereabouts of the fugitive, the offense with which the alleged fugitive was charged or of which he was convicted, the time and place of same, and the particulars in which the fugitive has violated the terms of his bail, and may request the issuance of a warrant for arrest of the fugitive, and the issuance, after hearing, of an order authorizing the affiant to return the fugitive to the jurisdiction from which he escaped bail. The magistrate may require such additional evidence under oath as he deems necessary to decide the issue. If he concludes that there is probable cause for believing that the person alleged to be a fugitive is such, he may issue a warrant for his arrest. The magistrate shall notify the district attorney of such action and shall direct him to investigate the case and determine the facts of the matter. When the fugitive is brought before him pursuant to the warrant, the magistrate shall set a time and place for hearing, and shall advise the fugitive of his right to counsel and to produce evidence at the hearing. He may admit the fugitive to bail pending the hearing. The district attorney shall appear at the hearing. If, after hearing, the magistrate is satisfied from the evidence that the person is a fugitive he may issue an order authorizing affiant to return the fugitive to the jurisdiction from which he escaped bail.
“A bondsman or other person who is bail for a fugitive admitted to bail in another state who takes the fugitive into custody, except pursuant to an order issued under this section, is guilty of a misdemeanor.”
Construed in Ouzts v. Maryland National Insurance Co., 505 F2d 547, 552-53 n 4 (9th Cir 1974), cert den 421 US 949 (1975).“For the purpose of surrendering the defendant, the bail at any time and place, before they are finally charged, may themselves arrest him, or by a written authority, indorsed on a certified copy of the undertaking, may empower the sheriff or any other person of suitable age and discretion to do so.”
I am unaware of any cases involving this section; I note, however, that these provisions have not gone unnoticed by the legislature; it amended