State v. GibbsState v. Gibbs
The Camdеn County grand jury returned three indictments against defendant, respectively
Defendant appeals his convictions. Assigned counsel on appeal is the same attorney who represented him at the trial.
I.
Preliminarily, we dispose of defendant‘s claim, made in a letter to counsel, that the appeal brief is “conspicuously weаk and insufficient” because it did not present “the circumstances and development of the alleged crimes and my arrest” or “the facts of the contradiction in the testimony of the alleged offended party under oath.” He also complains of counsel‘s failure to include in the typed appendix any portion of the transcript of the trial. We have been provided with and have carefully read the full transcript, and have assessed the points raised on appeal in the light of the trial record. We find that assigned counsel has presented every аrgument which might properly be raised. He has ably discharged his responsibility, both in this court and on the trial level. Defendant‘s complaint about the quality of his legal representation is without foundation.
II.
In the early evening of January 27, 1960, one B and his bride-to-be, Miss G, were sitting in B‘s automobile in the Evans Lake pаrking area, Haddonfield, N.J. Shortly after
The three younger membеrs of the quartet were dealt with as juveniles; defendant stood trial. B and Miss G positively identified him as the driver of the Oldsmobile and the man who held the gun, robbed them, kidnaped the girl and attempted to rape her. The three juveniles denied that defendant was their companion on the night in question, and said they did not know the name of the man who was with them. However, defendant had given the police a statement, admitted in evidence, which substantially connected him with the crime and was completely inconsistent with his testimony at the trial.
Since defendant, in his letter to assigned counsel, indicates that the trial record would support his claim of innocence, we have given particular attention to the transcript of the testimony, the summations and the charge to the jury. We conclude that the trial was entirely fair and that guilt was proved beyond a reasonable doubt.
III.
The kidnаping indictment charged, in the words of the statute, that defendant on January 27, 1960, in Haddonfield, Camden County, “unlawfully and feloniously did kidnap, steal and forcibly take away” Miss G from Haddonfield and “unlawfully and feloniously did carry [her] to another point in the State,” namely Delaware Township, in Camden County, contrаry to
Initially, defendant contends that the coexistence of
Although a defendant could, in certain circumstances, be charged with and found guilty of violating either statute, it is equally true that many sets of circumstances might establish guilt of the violation of
Defendant next attacks that part of the kidnaping statute under which he was indicted as constitutionally void by reason of vagueness. The argument here is that the statutory language is so general that it may be construed to embrace not only acts commоnly recognized as reprehensible but also others which it would be unreasonable to presume were intended to be made criminal. It is said that a serious question might be raised whether the statute is not applicable to a situation where a policeman forcibly takes a felon from the scene of the crime to the police station, or a person involved in an automobile accident to a doctor‘s office for examination to determine whether he was driving while under the influence of intoxicating liquor; or in some instances where one pаrent takes his child from the custody of the other parent; or where a staff member of a state institution transports a patient or inmate to another institution. Defendant states he has found no reported case in support of this contention.
“That if any person shall kidnap, or steal, or forcibly take away any man, woman or child, bond or free, and send or carry, or with intent to send or carry such man, woman or child from this State into another State or country * * * then the person so offending * * * shall be adjudged to be guilty of a high misdemeanor.”
The crime was punishable by a fine of $1,000 or imprisonment for five years, or both. Paterson, Laws of New Jersey, p. 218 (1800). The statutory language “kidnap, or steal, or forcibly take away” has been used ever since, for more than a century and a half. Revision of April 16, 1846, § 62 (Elmer‘s Digest of the Laws of New Jersey (4th ed. 1868), p. 203); P.L. 1875, p. 51; Revision of 1898, L. 1898, c. 235, § 114; L. 1907, c. 55, § 1; L. 1928, c. 182, § 1; L. 1933, c. 374, § 1; R.S. 2:143-1;
Statutory language must be given a reasonable construction in order to promote the efficient enforcement of our criminal law, prevent crime and advance the ends of justice. State v. Dunlap, 61 N.J. Super. 582, 588 (App. Div. 1960). In that case we quoted from People v. Hope, 257 N.Y. 147, 152, 177 N.E. 402, 404 (1931), where the Court of Appeals said of the New York kidnaping law that the object of the statute and of the common law on the subject was the same — “to secure the personal liberty of citizens and to secure to them the assistance of the law necessary to releаse them from unlawful restraint.”
Our kidnaping statute, as just noted, has always spoken of kidnaping or stealing or forcibly taking away a man, woman or child, etc. “Kidnap” takes us back to the common law definition. Cf. State v. Butler, 27 N.J. 560, 588 (1958) (“burglary“). The words “kidnaps,” “steals,” and “forcibly takes away,” which appear in
The third point raised on defendant‘s behalf is that the conviction for assault with intent to commit rape was void because the indictment on which it wаs based was fatally defective. Specifically, the charge is that the indictment failed to specify the essential facts necessary for the interposition of a plea of autrefois convict or autrefois acquit in the event of a further prosecution for the same offense. This should have been raised by motiоn before trial. R.R. 3:5-5(b) (2). But that aside, we find the argument without validity. The indictment clearly stated the offense — that defendant “did commit an assault upon one [Miss G] with intent to rape her, contrary to the provisions of
Finally, we are asked to reduce the sentences imposed by the trial judge, or have them run concurrently. State v. Johnson, above, 67 N.J. Super. 414 (App. Div. 1961), is cited in
The power of this court to reduce a sentence should be exercised with extreme care, and only in cases where the sentence imposed was unduly punitive. Primarily, the imposition of sentence rests within the sound discretion of the trial judge. While it is now firmly established by the Johnson case that the quantum of sentence may be reviewed by the appellate court, we must consider the sentence in the light of the total circumstances in determining whether the trial judge was justified in acting as he did. The burden of establishing that the sentence was excessive rests upon the defendant, and he may succeed in his contention only where it clearly appears that the judge abused his judicial prerogative.
In this connection, defendant urges that the three crimes all arose out of a single episode. The characterization is self-serving and incorrect. First came the robbery of the engaged couple. There followed defendant‘s decision to forcibly carry away Miss G, allegedly only for the purpose of taking her as far as the nearby bridge where she would be left with the keys to thе car. Ultimately defendant, the ringleader and guiding spirit of the affair, decided to transport the girl to a distant place for the purpose of raping her. All this represents a sequence of events deliberately undertaken, one after the other, rather than a single episode.
We are not insensible to the fact that the punishments imposed were severe in their totality. On the other hand, kidnaping, unlike most crimes, requires a mandatory sentence of at least 30 years — a punishment which the Legislature in its wisdom has deemed necessary to impose for this very serious crime. The sentences for assault with intent to rape and for the armed robbery were well within the maximum limits fixed by our criminal statutes.
It is probably true that defendant‘s early environmental background conditioned his lawlessness. This and other
Neither the circumstances of defendant‘s crimes nor the character of the man himself suggests possible leniency, unless we disregard the public safety and welfare.
Affirmed