199 Conn. 537 | Conn. | 1986
The defendant was charged in a substitute information with kidnapping in the second degree, burglary in the third degree, and assault in the third degree. After a jury trial, he was convicted of kidnapping in the second degree in violation of General Statutes § 53a-94
The defendant was a professional bail bondsman who wrote bail bonds as an agent for the Peerless Insurance Company. On June 3, 1983, he posted a bail bond in the amount of $500 for William Barraso. Prior to June 3, Barraso had been arrested under the name of William Shea and confined in lieu of bond in New Haven on charges of larceny in the sixth degree, and failure
On the evening of July 18, 1983, while the rearrest warrant was outstanding the defendant was notified by Robert McLellan that Barraso could be located in a rooming house at 73 Whitney Avenue in New Haven. McLellan resided at the same rooming house and had known Barraso for three or four years. He had induced the defendant to post Barraso’s bond and was apprehensive that he might have some personal liability on the bond if Barraso did not fulfill his obligation to appear in court. After being contacted by McLellan, the defendant went to New Haven police headquarters that same evening and inquired of Sergeant Michael Sweeney, who was in charge of the detention area, whether there were outstanding warrants for Barraso. Sweeney called the records division on the telephone and, because he was busy, handed the phone to the defendant to allow him to ascertain the requested information for himself. The defendant testified that at that time he was told there were two outstanding arrest warrants for Barraso.
At about 10 p.m. the defendant met McLellan and they went to 73 Whitney Avenue. McLellan, who had a key, admitted them to the building and they proceeded to a room rented by James Shea. Shea was a friend of Barraso and Barraso frequently slept in his room. While McLellan was knocking on the door to gain admittance, James Shea arrived in the hallway out
When the trio arrived at headquarters at about 10:30 p.m., Sweeney was still on duty in the detention area. The defendant told Sweeney that Barraso had come to turn himself in voluntarily. After observing the situation and talking with Barraso, Sweeney concluded that Barraso had not appeared at headquarters voluntarily and inquired of the defendant whether he had a “bail piece.”
At trial, in response to questions by the prosecutor, the defendant opined that he had no right because of
At the conclusion of the evidence, the trial court charged the jury that the defendant had no special arrest powers and no authority exceeding that of a private citizen to apprehend and detain Barraso. It also instructed the jury that the rearrest warrant was directed to a “proper officer,” and that the defendant was not a “proper officer” and had no authority by virtue of the warrant to arrest Barraso. The trial court then referred to the factual situation and charged the jury that, as a matter of law, the defendant had no authority to arrest Barraso. It defined “arrest” as meaning “to deprive another of his liberty. That is, to take custody of him.”
The defendant contends that the trial court’s instructions in this regard were erroneous and that the erroneous instructions created a conclusive presumption that the restraint of the victim was unlawful. Unlawful restraint of the victim is an essential element of the crime of kidnapping. See General Statutes § 53a-91 (1) and (2).
The common law confers on the surety
Bail is considered a continuation of the original imprisonment. In Taylor v. Taintor, a case which arose out of a Connecticut bail bond, the United States Supreme Court said: “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 may chose to do so, they may seize him and deliver him up in their discharge; and if that can not 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; 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. [Citations omitted.] In [Anonymous, 6 Mod. 231 (1703),] it is said, ‘The bail have their principal on a string, and may pull the string whenever they please and render him in their discharge.’” Taylor v. Taintor, supra, 371; Carlson v. Landon, 342 U.S. 524, 547, 72 S. Ct. 525, 96 L. Ed. 547 (1952); Reese v. United States, 76 U.S. 13, 21, 19 L. Ed. 541 (1869); United States v. Lee, 170 F. 613, 614 (S.D. Ohio 1909). “The right of the bail over his principal, whether exercised personally or by delegation, is too well established to require any observation. I will barely remark, that the law supposes the principal to be always in the custody of his bail; and if he is not in fact, the bail may take him, when and where he pleases.” Reed v. Case, supra, 170. “The custody of bail is a continuation of the original imprisonment.” State v. Bates, 140 Conn. 326, 330, 99 A.2d 133 (1953); In re Lexington Surety & Indemnity Co., 272 N.Y. 210, 213-14, 5 N.E.2d 204 (1936).
In Connecticut the common law right of a bail bondsman to apprehend his principal may have been modi
General Statutes (Rev. to 1983) § 54-65a,
“It is an established rule of statutory construction that statutes are not readily interpreted as abrogating common-law rights.” State v. Assuntino, 173 Conn. 104, 106, 376 A.2d 1091 (1977). It is also a rule of statutory construction that statutes in derogation of the common law are to be strictly construed. McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981); Blue Cross & Blue Shield of Connecticut, Inc. v. Mike, 184 Conn. 352, 361, 439 A.2d 1026 (1981); State v. Beauton, 170 Conn. 234, 241, 365 A.2d 1105 (1976). “ ‘No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.’ Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L. Ed. 892 [1880].” Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951).
It is obvious from a reading of General Statutes (Rev. to 1983) § 54-65a that it can coexist with the common law right of a bail bondsman to apprehend and surrender his principal. There is nothing in the wording of the statute which abrogates that right and requires the surety to rely on a rearrest warrant or a mittimus to fulfill his obligation. While the statute may provide the bondsman with assistance from the authorities, it does not prohibit him from employing common law sanctioned self-help to return his principal to custody. Further, there is nothing in the scanty legislative history of General Statutes (Rev. to 1983) § 54-65a that indicates a legislative intention to abrogate the common law rights of bail bondsmen.
The fact that the defendant acted as an agent for an insurance bonding company, a corporation, rather than as an individual bail bondsman licensed under chapter 533 of the General Statutes is of no moment. See Curtis v. Peerless Ins. Co., 299 F. Sup. 429, 435 (D. Minn. 1969). If authorized, he had the same common law right to seize the principal on the bond. The surety may act through an agent. Taylor v. Taintor, supra, 371; Fitzpatrick v. Williams, supra, 40; Curtis v. Peerless Ins. Co., supra, 435.
It is also of no significance that the defendant testified in response to questions by the prosecutor that he did not have the right to seize and detain Barraso. The salient factor is not whether the defendant did or did not think the right existed but whether the right in fact did exist. The defendant’s ignorance of the right does not diminish it. See Dreier v. Upjohn, 196 Conn. 242, 248, 492 A.2d 164 (1985); Farley-Harvey Co. v. Madden, 105 Conn. 679, 684, 136 A. 586 (1927).
The course of action pursued by the defendant is not without its risks and a bondsman might very well be liable in tort if he oversteps the bounds of his authority. McCaleb v. Peerless Ins. Co., 250 F. Sup. 512, 515 (D. Neb. 1965); Bennett v. State, 169 Ga. App. 85, 86, 311 S.E.2d 513 (1983). As anachronistic as it may seem, however, the common law right of a bail bondsman to pursue and apprehend his principal, at least after the principal has failed to appear in court and has forfeited
It is fundamental that the state has the burden of proving all the necessary elements of the crime charged beyond a reasonable doubt. In re Winship, supra, 363-64; State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977). A necessary element of kidnapping in the second degree is that the restraint of the victim be unlawful. See General Statutes §§ 53a-94 (a) and 53a-91 (1), (2). In view of our holding, the state failed to prove that element at the trial. Further, in its brief on appeal, the state concedes that the defendant was a professional bail bondsman who apprehended his principal after the principal failed to appear in court. We are constrained therefore to conclude that there is no issue of fact to submit to a jury on a retrial.
There is error, the judgment is set aside and the case is remanded with direction to render a judgment that the defendant is not guilty of kidnapping in the second degree.
In this opinion the other judges concurred.
“[General Statutes] Sec. 53a-94. “kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.
“(b) Kidnapping in the second degree is a class B felony.”
“[General Statutes] Sec. 53a-6. effect of IGNORANCE OR MISTAKE, (a) A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense; or (2) the statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or (3) such factual mistake is of a kind that supports a defense of justification.
“(b) A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless (1) the law provides that the state of mind established by such mistaken belief constitutes a defense, or unless (2) such mistaken belief is founded upon an official statement of law contained in a statute or other enactment, an administrative order or grant of permission, a judicial decision of a state or federal court, or an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”
By “bail piece” Sergeant Sweeney was apparently referring to a mittimus issued under General Statutes § 54-65.
“[General Statutes] Sec. 53a-91. definitions. The following definitions are applicable to this part:
“(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but
“(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation. ...”
The party who posts the required amount of bail is commonly called the “bail bondsman” or “surety,” and in older cases is referred to simply as the “bail.” The “principal” is the person who has been arrested and is released on bond pending his scheduled court appearance.
“[General Statutes] Sec. 54-65. eights of sueety. Any surety in a recognizance in criminal proceedings, who believes that his principal intends to abscond, may apply to a judge of the superior court, produce his bail bond or evidence of his being a surety, and verify the reason of his application by oath or otherwise. Thereupon, the judge shall immediately grant a mittimus, directed to a proper officer or indifferent person, commanding him immediately to arrest the principal and commit him to a community correctional center. The community correctional center administrator shall receive the principal and retain him in a community correctional center until discharged by due order of law. The surrender of the principal shall be a full discharge of the surety upon his bond or recognizance.”
“[General Statutes (1821 Rev.)]
“Title 5, Bail. § 8
“sect. 8. In all cases, where any person or persons, have executed a bail-bond, or entered into a recognizance for the personal appearance of another, and such bail or surety shall afterwards believe that his principal intends to abscond, such bail, or surety, on application to any justice of the peace, in the county in which such principal resides, and producing his bail-bond, or evidence of his being bail or surety, and verifying the reason of his application, by oath or otherwise, it shall be the duty of such justice forthwith to grant a mittimus, directed to the sheriff, his deputy, or constable, or indifferent person of the county in which such application shall be made, commanding such officer or indifferent person, forthwith to arrest such principal, and him commit to the keeper of the common gaol in such county, who is hereby authorised to receive such principal, and him retain in gaol, until discharged by due order of law.”
“[General Statutes (1808 Rev.)]
“Title XVI, Bail. Chapter I, § 3
“§ 3. That in either of the cases aforesaid, every such surety or sureties shall be obliged to satisfy the judgment in case of the principal’s avoidance, and a return of non est inventus on the execution; unless such surety, at
“[General Statutes (Rev. to 1983)] Sec. 54-65a. REARREST for FAILURE TO appear; rebate TO surety, (a) Whenever an arrested person is released upon his execution of a bond with surety in an amount of five hundred dollars or more and such bond is ordered forfeited because the principal failed to appear in court as conditioned in such bond, the court shall, at the time of ordering the bond forfeited, issue a rearrest warrant and a mittimus directing a proper officer to take the defendant into custody and shall order a stay of execution upon the forfeiture for six months. Such stay of execution shall not prevent the issuance of a rearrest warrant.
“(b) Whenever an arrested person, whose bond has been forfeited, is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited, the surety on such bond shall be entitled to a rebate of that portion of the forfeited amount as may be fixed by the court or as may be established by a schedule adopted by rule of the judges of the court.”
“I think it’s a good bill and that it will assist in perhaps apprehending people who have skipped and not appeared in court pursuant to the conditions of the bond.” (Emphasis added.) 20 S. Proc., Pt. 8,1977 Sess., p. 3017, remarks of Senator Salvatore DePiano on H.B. 6909.