State v. Clark

455 P.2d 844, 80 N.M. 340
CourtNew Mexico Supreme Court
DecidedJune 16, 1969
Docket8792
StatusPublished
Cited by54 cases

This text of 455 P.2d 844 (State v. Clark) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 455 P.2d 844, 80 N.M. 340 (N.M. 1969).

Opinions

OPINION

MOISE, Justice.

Petitioner here seeks review of the decision of the Court of Appeals affirming his conviction of the crime of kidnapping. Jurisdiction is asserted because of two claimed errors in the opinion, viz.,

(1) That the kidnapping statute (§ 40A-4-1, N.M.S.A.1953) under which petitioner was convicted is unconstitutional in that it permits conviction of kidnapping, a capital or second degree felony, for the identical conduct that constitutes false imprisonment (§ 40A-4-3, N.M.S.A.1953), a fourth degree felony. State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966); and

(2) That petitioner’s constitutional rights' were infringed at the trial, when, over objection, the victim was permitted to point out the petitioner as her assailant without it having first been established that the identification was not tainted by illegal and improper methods theretofore utilized, assertedly contrary to the holding in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

. The facts are adequately set forth in the opinion of the Court of Appeals, 80 N.M. 91, 451 P.2d 995 (1969), and will not be repeated here, except as required.

The material part of § 40A-4-1, reads as follows:

“Kidnaping is the unlawful taking, restraining or confining of a person, by force or deception, with intent that the victim be held for ransom, as a hostage, confined against his will, or to be held to service against the victim’s will.”

For purposes of the discussion to follow, § 40A-4-3, supra, is also quoted. It provides :

“A. False imprisonment consists of intentionally confining or restraining another person without his consent and with knowledge that he has no lawful authority to do so.”

We first consider the relationship of these statutes to each other. Petitioner argues that § 40A-4-1, supra, is ambiguous in that it is not clear as to whether there must be intent (1) to hold the victim against his will for ransom and as a hostage, or. (2) to service against his will; or to hold either (a) for ransom, or (b) as a hostage, or (c) against his will, or (d) to service against his will. He takes the position that the more reasonable interpretation would be the first alternative, that the holding must be for ransom, as a hostage against his will, or that the holding must be to service against his will. The statute would thus be given a restrictive operation more closely approximating “kidnapping” as that term is generally understood.

Further, it is argued that if nothing more is required than unlawful restraining or confining by force with intent that confinement be against the will of the victim, the acts prohibited, are no different than those comprising the crime of false imprisonment, a lesser offense, and, under the doctrine of State v. Chavez, supra, a denial of equal protection of the laws would result when the prosecuting, officials, in their sole discretion, choose to prosecute for kidnapping when they could charge with false imprisonment under the identical facts.

The Court of Appeals concluded that the two' statutes were distinguishable on the basis that while both require an intent to confine, the kidnapping statute requires that it be by force or deception, while the false imprisonment statute has no such requirement. We cannot agree for we doubt that, in any instance, a person can be intentionally confined or restrained without his consent absent some measure of force .or deception. Neither are we persuaded that “force” should be construed to - mean violent or deadly force, as might be suggested. It could not have been the legislative intention to so limit the statute, for, many'kidnappings are accomplished by the use of only minimal force, as, for example, where a child is abducted.

As we have said many times, in interpreting ambiguous statutes we should' strive to find the legislative intent, and words may be added only to that end or to-avoid absurdity. State v. Nance, 77 N.M. 39, 419 P.2d 242 (1966); State v. Ortiz, 78 N.M. 507, 433 P.2d 92 (Ct.App.1967). We also recognize the rule which requires that penal statutes be strictly construed. State v. Bell, 78 N.M. 317, 431 P.2d 50 (1967); State v. Buford, 65 N.M. 51, 331 P.2d 1110, 82 A.L.R.2d 787 (1958). When these rules are considered, together with the additional principle that statutes passed at the same session of the legislature and pertaining to the same subject matter be con-' strued as in pari materia, with both to be given effect if reasonably possible to do so, State v. Chavez, supra; State v. Fidelity & Deposit Co. of Maryland, 36 N.M. 166, 9 P.2d 700 (1932); State v. Marcus, 34 N.M. 378, 281 P. 454 (1929), we are brought to the conclusion hereinafter set forth.

While we fully appreciate that statutory expression often departs from generally-accepted rules of English composition, 2 Sutherland, Statutory Construction 391, § 4906 (3rd Ed.1943), we believe that recognition of certain rules of grammar may be helpful. In this connection, it must be un- . derstood that commas may be used to enclose as well as to separate. See Roberts, Harris & Johnson, A Handbook of English (1944). These two different uses are otherwise described as “parenthetical” commas and “serial” commas. See Walsh, Plain, English Handbook (1959); Strunk and White, The Elements of Style (1959).

Applying both the rules for statutory construction and those applicable to English composition to § 40A-4—1, supra, we are able to arrive at a meaning for the language, “confined against his -will” which permits giving effect to both § 40A-4-1, supra, and § 40A-4-3, supra, and which, in our opinion, at the same time, reflects what must have been intended by the legislature. We conclude that the section should be read:

Kidnapping is the unlawful taking, restraining or confining of a person, by force or deception with intent that the victim be held for ransom and confined against his will.

Also:

Kidnapping is the unlawful taking, restraining or confining of a person by force or deception with intent that the victim be held as a hostage and confined against his will.
Kidnapping is ■ the unlawful taking, restraining or confining of a person by force or deception with intent that the victim be held to service against the victim’s will.

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Bluebook (online)
455 P.2d 844, 80 N.M. 340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-nm-1969.