State v. Epps

585 P.2d 425, 36 Or. App. 519, 1978 Ore. App. LEXIS 1959

• Court: Court of Appeals of Oregon
• Decided: October 16, 1978
• Docket: C 77-05-07062, CA 9138; C 77-05-07063, CA 9222
• Status: Published

Opinions

TANZER, J.

Defendants appeal from their convictions of kidnapping in the second degree. They are agents of a California surety company, Cowboy Bail Bonds, which entered into a bail agreement with one Morrow to effectuate his release from incarceration in Bakersfield, California. In violation of the terms of the agreement, Morrow then left California without the consent of either the surety or the court and took up residence in Portland, Oregon. In 1977, he was pursued and captured by defendants in Portland and returned to the custody of the court in California. It is that taking which is the basis of the present kidnapping conviction.

Kidnapping in the second degree is defined by ORS 163.225(l)(a), which provides:

"A person commits the crime of kidnapping in the second degree if, with intent to interfere substantially with another’s personal liberty, and without consent or legal authority, he:

"(a) Takes the person from one place to another * * * >5

Defendants admit they took the victim from one place to another. Defendants contend that the taking was not "without consent or legal authority.”

I. "WITHOUT CONSENT”

First, the defendants assert that the taking was not "without consent.” ORS 163.215(1) defines that term for purposes of the kidnapping statutes:

" 'Without consent’ means that the taking or confinement is accomplished by force, threat or deception * * * 99

There is evidence that defendant Azevedo burst into a room where the victim, Morrow, was employed. Azevedo demanded to know whether Morrow was Steven Morrow. When Morrow asked Azevedo why he wanted to know, Azevedo grabbed Morrow’s arm and insisted that Morrow identify himself. Morrow denied that he was Steven Morrow. Defendant Epps then entered the office and pushed Morrow against a partition. During the struggle, Morrow shouted to his supervisor to call the police and he did so.

Morrow broke loose. He ran out of the office and down the street. Azevedo pursued Morrow on foot while Epps chased him in a pickup truck. Defendants eventually cornered Morrow. They pulled Morrow’s hands behind his back and handcuffed him. Defendants then pushed Morrow into their pickup and started driving toward California. After about an hour and a half, Morrow complained that it hurt his shoulder to have his hands cuffed behind his back. Defendants took the handcuffs off of Morrow, placed his hands in front of him and put the handcuffs back on. Defendants also placed leg-irons around Morrow’s ankles. Morrow was not allowed during the 18-hour ride to stop or make any phone calls. At no time did Morrow consent to being handcuffed or restrained or to accompanying defendants back to California. Defendants took Morrow to the Kern County Jail. The recited evidence is sufficient to establish, in the words of the statute, "that the taking or confinement [was] accomplished by force.”

Defendants contend that Morrow had given his consent to be taken into custody if he failed to notify the bondsman of a change of address or employment by having signed a bond agreement which included a provision to that effect. Whatever legal effect such a contractual provision might have, it does not constitute consent as that term is used in the statutory definition which, as it applies to this case, is based solely upon the use of force in the taking.

II. "WITHOUT * * * LEGAL AUTHORITY”

A. The Applicable Statute

The defendants next contend that the taking was legally authorized. Obviously, with "legal authority” means authorized by law. The warrantless arrest in Oregon by a private person of a person accused of a crime in another state is authorized and regulated by ORS 133.805 of the Uniform Criminal Extradition Act.¹ That section provides:

"The arrest of a person may be lawfully made also by an officer or a private citizen without a warrant, upon reasonable information that the accused stands charged in the courts of another state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in ORS 133.803; and thereafter his answer shall be heard as if he had been arrested on a warrant.”

Under this statute, the defendants were legally authorized to arrest Morrow and take him before a judge or magistrate with all practicable speed for legal proceedings to determine if Morrow was in fact the person wanted and if the charge against him was extraditable. The acts of the defendants in taking Morrow straightaway to California were not authorized by the statute which controls the legal authority to arrest a person wanted in another state. Therefore, the "legally authorized” exception to the kidnapping statute provides no excuse for defendants’ conduct.

B. The Defendants’ Theory

Acknowledging that there is no statute authorizing the private arrest of a person wanted in another state, the defendants contend, and our dissenting colleagues seem to agree, that legal authority for the kidnapping exists by virtue of common law doctrine which is still valid in Oregon. Their contention is based upon the leading case of Taylor v. Taintor, 83 US (16 Wall) 366, 371, 21 L Ed 287 (1872) (decided, in historical terms, a short time after the more celebrated case of Dred Scott v. Sandford, 60 US (19 How) 393,15 L Ed 691 (1856), with which the latter opinion shares some common philosophy, notwithstanding the intervening conflict) stating the common law doctrine that a bail bondsman has absolute dominion over his principal:

"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 choose to do so, they may seize him and deliver him up in their discharge; and if that cannot 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. * * *”²

The defendants contend that Oregon adopted the common law rule in 1864 by enactment of a statute which, in its most recent form, former ORS 140.420, provided:

"For the purpose of surrendering the defendant, the bail, at any time before the forfeiture of their undertaking and at any place within the state, may themselves arrest him or, by a written authority indorsed on a certified copy of the undertaking, may empower any other person so to do.”

We see nothing in the words of former ORS 140.420 which authorizes transport out of the state for surrender and it has never been so construed. Even if we accept defendant’s contention that the statute was intended to codify the common law rule in all its particulars, however, common law rules are not immutable. The common law rule which defendant relies is inconsistent with contemporary requirements of civility. The undesirable workings of the rule enunciated in Taylor v. Taintor are summarized in a generative work of the modem bail revision movement, R. Goldfarb, Ransom 117-18 (1965):

"These powers would be far-reaching and abusable enough in the hands of proper and responsible police authorities. The same powers in the hands of bondsmen is shocking and frightening. The bondsman is subject to less controls and is possessed of greater powers than is the law enforcement officer who would exercise counterpart functions. Hence he can act as a de facto state agent without being subject to the usual safeguards ordinarily surrounding the conduct of those officials.

"When a defendant who is free on bail flees from the jurisdiction of the court under whose control he is, no matter how metaphysically, the bondsman may pursue, arrest, and return the truant. The bondsman’s powers conflict with the traditional safeguards that protect all criminally accused during the process of extradition. He can arrest and return a defendant in a summary maimer beyond the powers of peace officers who must follow the procedures of extradition. And yet he is acting as part of the administration of the official criminal law apparatus of the state when he is doing this.” (Footnote omitted.)

If ever the common law rule existed in Oregon, it is no more. In 1973, as a part of a comprehensive revision of the code of criminal procedure, the legislature repealed the entire statutory scheme regulating the traditional bail system in Oregon and enacted in its place a security release system eliminating reliance upon the extraordinary powers of bail bondsmen. At least three observations relevant to that legislative action are significant here: (1) There was a complete abandonment, not a reform, of the bail system; (2) ORS 140.420 was repealed; and (3) as a part of the criminal procedure revision, the Uniform Criminal Extradition Act, including what is now ORS 133.805, was re-enacted with some conforming amendments.

From this, the defendants would have us conclude as a matter of statutory construction that the repeal of a statute codifying a common law rule is not an abandonment of the common law principle and that Taylor v. Taintor still lives. We conclude to the contrary. The legislative action was intended to eliminate the bail system and its attendant evils in favor of a more civilized system of apprehension and return of accused and convicted criminals. The common law rule is abandoned in favor of ORS 133.805 which provides judicial notice and identification safeguards which are more consistent with contemporary standards of due process.³

Because the defendants took the victim forcefully from one place to another without legal authority, the conviction must be upheld.

Affirmed.

1 The dissent states that the taking was not authorized by ORS 133.803, but makes no mention of ORS 133.805.

2 It is trae that this passage from Taylor v. Taintor, 83 US (16 Wall) 366, 21 L Ed 287 (1872), was quoted in State v. Broom, 121 Or 202, 209, 253 P 1042, 253 P 1044 (1927), as noted in the dissent, but it was not a decisional issue. It is unlikely that the common law rule was ever enunciated in Oregon.

3 California has also outlawed the common law powers of bondsmen and requires more stringent due process protections than are afforded in Oregon by ORS 133.805. California Penal Code, § 847.5; see, Ouzts v. Maryland National Insurance Co., 505 F2d 547, 552-53 (9th Cir 1974), cert den 421 US 949 (1975).