24 N.C. App. 598 | N.C. Ct. App. | 1975
Defendant’s first assignment of error is directed to the court’s refusal to grant his motion for continuance. It appears that the bill of indictment upon which defendant was tried was returned at the same session of court at which he was tried. He was represented by court-appointed counsel who was appointed some five days after the warrant was served on defendant and approximately three weeks prior to trial. Defendant was under bond to appear in court on 11 February 1974 and remain until released or discharged. On Monday, 18 February 1974, the solicitor called defendant’s case for trial after the grand jury had returned a true bill. The court continued the case until later in the week for the benefit of defendant’s counsel. When it was again called, counsel made an oral motion for continuance until the next session of court. He gave no reason other than that the bill of indictment had just been returned at that session and the case was not on the calendar. He did not reduce his motion to writing and give other reasons therefor. There is no showing that any witnesses for defendant would not be available who could and would be available at the next session. There is no statement by counsel that he had not had adequate time to prepare defendant’s defense.
The mere fact that a true bill is returned and the case is called for trial at the same session does not entitle defendant to a continuance to the next session. State v. Gay, 273 N.C. 125, 159 S.E. 2d 312 (1968).
“Motions to continue are addressed to the sound discretion of the trial judge and his rulings thereon will not be upset on appeal absent a showing of such abuse of discretion as would deprive the defendants of a fair trial. (Citations omitted.)” State v. Shue, 16 N.C. App. 696, 193 S.E. 2d 481 (1972). Here defendant has shown no abuse of discretion.
Defendant next contends the court erred in failing to grant his motion for judgment as of nonsuit made at the close of the State’s evidence and renewed at the end of all the evidence. In order to reach a conclusion as to this question, we must examine the evidence in the light of recent opinions of the Supreme Court of North Carolina. The State’s evidence pertinent to the questions raised on this appeal would tend to show the following: At the time of the incident complained of, the prosecuting witness, Ñaman Arthur Wallin, hereinafter referred to as “Wallin”,
Defendant contends that the evidence is insufficient under State v. Dix, 282 N.C. 490, 198 S.E. 2d 897 (1978), and State v. Roberts, 286 N.C. 265, 210 S.E. 2d 396 (1974), to support a verdict of guilty of kidnapping.
In State v. Ingland, 278 N.C. 42, 178 S.E. 2d 577 (1971), Justice Huskins, speaking for a unanimous Court, approved this definition of false imprisonment, a common law crime for which North Carolina has no statute:
“ ‘Any unlawful restraint of one’s liberty, whether in a common prison, in a private house, on the public streets, in a ship, or elsewhere, is in law, a false imprisonment. . . . The offense is a misdemeanor at common law.’ (Citations omitted.)” Supra, at 51.
In distinguishing the crime of false imprisonment from the crime of kidnapping, the Court said:
“On the other hand, common-law kidnapping contemplates, in addition to unlawful restraint, a carrying away of the person detained. State v. Harrison, 145 N.C. 408, 59 S.E. 867 (1907), quotes Bishop’s definition of kidnapping as ‘false imprisonment aggravated by conveying the imprisoned person to some other place.’ See also State v. Lowry, supra. Blackstone and the early English authorities held that a carrying away to another country was necessary to constitute kidnapping. The asportation requirement has*602 now been relaxed, however, so that any carrying away is sufficient. The distance the victim is carried is immaterial. State v. Lowry, supra.” State v. Ingland, supra, at 51.
In State v. Dix, supra, Justice Sharp writing for the majority, disapproved the use of the statement in State v. Ingland, supra, “ . . . any carrying away is sufficient. The distance the victim is carried is immaterial”, saying that it was first used in this State as dictum in State v. Lowry, 263 N.C. 536, 139 S.E. 2d 870, appeal dismissed sub. non., 382 U.S. 22, 15 L.Ed. 2d 16, 86 S.Ct. 227 (1965). Justice Sharp noted that this apothegm was first laid down by the California Supreme Court in People v. Chessman, 38 Cal. 2d 166, 238 P. 2d 1001 (1951), and followed in People v. Wein, 50 Cal. 2d 383, 326 P. 2d 457, cert. den., 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed. 2d 99, reh. den., 358 U.S. 896, 79 S.Ct. 153, 3 L.Ed. 2d 122 (1958), but that “18 years after the Chessman decision, when time had demonstrated, the unwisdom of the Chessman-Wein apothegm, the California Supreme Court confessed error in its previous construction of Sections 207 and 209 of the Penal Code and overruled Chessman and Wein. (Citations omitted.)”
In Dix the Court, in our opinion, does not by any means lay down a rule requiring lineal measurement of the distance of the asportation in order to fit a kidnapping charge to the definition. What the Court does do, we think, is to point out that the danger of the use of the Lowry statement adopted from Chessman and Wein is the very real possibility that many prosecutions for kidnapping may be brought for the purpose of securing much greater punishment than could be assessed for the crime which was committed to which the asportation of the victim was incident, or securing greater punishment by creating multiple offenses from a single crime even though the victim might have been removed only slightly and the risk of harm to the victim was not substantially increased over and above that necessarily present in the offense committed to which the aspor-tation was incidental. In other words, the movement of the victim by the defendant must manifest the commission of a separate crime. In Dix, the Court held that the facts did not support conviction of kidnapping although they would justify the charges of and support conviction for the felony of assault with a firearm upon a law enforcement officer and the misdemeanors of false imprisonment and aiding and abetting prisoners to escape from jail.
“As held in Ingland, the word Kidnap, as used in G.S. 14-39, means the unlawful taking and carrying away of a human being against his will by force or fraud or threats or intimidation. In the present case, the questions are whether the evidence was sufficient to show (1) that defendant falsely imprisoned Kathy, and (2) that he unlawfully carried her away by force, in such manner as to constitute the felony of kidnapping.” (Emphasis added.)
In holding that the evidence in Roberts was not sufficient to establish either the false imprisonment or the carrying away element of the felony of kidnapping, the Court specifically noted that it made no attempt “to mark out the limits of what constitutes a false imprisonment or a carrying away sufficient to satisfy” the elements in the crime of kidnapping promulgated in Ingland. We think in a proper case, the removal of the victim only a few feet could be sufficient to constitute kidnapping under either Dix or Roberts.
In the case now before us, the removal of the victim was a distance of some one half mile. The distance, however, we deem immaterial. The evidence, taken in the light most favorable to the State, tends to show that defendant had completed the commission of the crime of shooting deer at night. The removal of Wallin by force was not for the purpose of committing that crime nor was it incidental thereto. The forcible removal of Wallin was a separate and distinct offense committed for the purpose of affording defendant safe passage out of the area. He was, in his own words, using Wallin as his “ticket out of here”. This was a type of holding for ransom, an element of the true and independent crime of kidnapping.
We think this case is clearly factually distinguishable from Dix and Roberts. Unquestionably the facts bring it within the requirements set out in Dix as being necessary to support a conviction for kidnapping.
Defendant excepts to the court’s instructing the jury that “[a]ny carrying away is sufficient, members of the jury, that is the distance he is carried is immaterial.” This, of course, is the language used in Ingland, and, concededly, the use of this language was disapproved in Dix. Nevertheless, in the case now before us, the undisputed facts are such that the use of this language by the court in its charge to the jury did not constitute reversible error. We are of the opinion that this is a case in which the distance the victim was carried is immaterial.
Defendant has had a fair trial, represented both at trial and on appeal by competent counsel.
No error.