8 M.J. 522 | U.S. Army Court of Military Review | 1979
OPINION OF THE COURT
Contrary to his pleas, appellant was convicted of aggravated kidnapping, communicating a threat, and assault consummated by a battery, in violation of Articles 134 and 128, Uniform Code of Military Justice (U.C. M.J.), 10 U.S.C. §§ 934 and 928, respectively. Appellant was tried at Fort Bliss, Texas. The sentence as approved provided for a bad-conduct discharge, confinement at hard labor for one year, forfeiture of all pay and allowances and reduction to Private E-l.
The kidnapping offense was charged under Article 134, UCMJ, as a violation of Texas, Penal Code Annotated § 20.04 (1974) (aggravated kidnapping), as assimilated by Title 18 United States Code § 13 (Assimilative Crimes Act). The latter statute provides:
Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.
As was pointed out in United States v. Perkins, 6 M.J. 602 (A.C.M.R.1978), The As-similative Crimes Act’s purpose is to fill the gaps in criminal law on federal reservations by assimilating the local state law. Id. at 603.
Charging in this manner was improper in this case as a specific federal statute, 18 U.S.C. § 1201 (1976), covers the offense of kidnapping.
As was pointed out in United States v. Dawkins, 7 M.J. 720 (A.C.M.R.1979), it is well settled in the civilian Federal Courts that an incorrect statutory reference in an indictment does not require reversal where all the essential elements of the correct statute are otherwise covered. This proposition is also true in military law. Paragraph 27, Manual for Courts-Martial, United States, 1969 (Revised edition) provides in part that “[njeither the designation of a wrong article nor failure to designate any article is ordinarily material, provided the specification alleges an offense of which courts-martial have jurisdiction.”
The basic difference between the Texas Statute
In arriving at this conclusion we must also decide a related issue raised by appellant. That is whether the specification failed to allege an offense by not alleging that the abduction was “unlawful.” 18 U.S.C. § 1201 prohibits an “unlawful” abduction. The Texas statute does not use the same term. Rather the specification here in question consistent with Texas law avers a knowing and intentional abduction for the purpose of inflicting bodily harm and to terrorize. We find this factual allegation sufficiently alleges the unlawfulness of the act. As the Court of Military Appeals has pointed out, it is unnecessary to include words imputing criminality
In sum, the specification fairly informed appellant that he was to defend himself against the offense of kidnapping; it contains all of the essential elements of proof as the offense is defined in 18 U.S.C. § 1201 (1976); and it affords protection against future prosecutions for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). Additionally, we find a reduction in sentence is not required as the sentence permitted under the state law was less than that of § 1201. See Dawkins, supra at 724.
One other alleged error raised by appellant requires brief comment. He claims that the kidnapping, the communication of a threat and the assault were multiplicious for sentencing purposes. We find they are not. Although the “single inte
Only so much of the finding of guilty of Specification 1 of Charge I as finds that appellant did at Fort Bliss, Texas, a military installation under exclusive federal jurisdiction, on or about 5 April 1978, intentionally and knowingly abduct Laura M. Tovar to intentionally inflict bodily harm upon and to terrorize her by wrongfully and unlawfully using force and intimidation and threats to intentionally prevent her liberation by secreting and holding her in a place she was not likely to be found and by using and threatening to use deadly force, is affirmed. The remaining findings of guilty and the sentence are affirmed.
Senior Judge MITCHELL concurs in result only.
. § 1201. Kidnapping
(a) Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when: .
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States; . shall be punishable by imprisonment for any term of years or for life.
. § 20.04. Aggravated Kidnapping
(a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
(1) hold him for ransom or reward;
(2) use him as a shield or hostage;
*525 (3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;
(4) inflict bodily injury on him or violate or abuse him sexually;
(5) terrorize him or a third person; or
(6) interfere with the performance of any governmental or political function.
. Although 18 U.S.C. § 1201 was amended in 1972 (inter alia enlarging jurisdiction to include kidnapping done in an area of Federal territorial jurisdiction) that change did not affect the Healy ruling that the purpose of the kidnapping was of no import. See, e. g., United States v. Cavallaro, 553 F.2d 300, 303-4 (2d Cir. 1977); United States v. Atchison, 524 F.2d 367 (7th Cir. 1975).
. Words such as unlawfully, wrongfully, etc., see paragraph 28a, MCM 1969 (Rev.).