United States v. Charlton

18 C.M.A. 141, 18 USCMA 141, 39 C.M.R. 141, 1969 CMA LEXIS 564, 1969 WL 5932

• Court: United States Court of Military Appeals
• Decided: March 7, 1969
• Docket: No. 21,345
• Status: Published

Opinions

Opinion of the Court

Darden, Judge:

The appellants pleaded guilty to kid-naping, desertion, unauthorized absence, escape from confinement, robbery, and aggravated assault. They were sentenced to dishonorable discharge, confinement at hard labor for three years, and total forfeitures. In addition, appellant Charlton was sentenced to be reduced to pay grade E-l. The sentences have been approved by the intermediate appellate authorities. The issue before the Court is whether the guilty pleas of the appellants were improvidently entered because the stipulated facts do not constitute the offense of kidnaping.

The evidence indicates that the following actions took place:

“On the evening of 27 November 1967, Corporal Warren D. CLOPPER, U. S. Marine Corps, was at the R & R Center in Danang waiting to go on R & R the next morning. While waiting there he met Private First Class Harold E. CHARLTON and Private Craig C. SOKOL, who, unknown to Corporal CLOPPER, had recently escaped from the III Marine Amphibious Force Brig. Corporal CLOPPER stated that he intended to sleep at the Air Freight Terminal, that night, and Private First Class CHARLTON and Private SOKOL said that they would probably be sleeping at the same place.

“After stopping at the MP Club for a few sodas, the three of them arrived at the Air Freight Terminal at about 2230, and Corporal CLOPPER went inside to go to sleep. On three separate occasions that night, Private First Class CHARLTON and Private SOKOL woke Corporal CLOPPER to borrow cigarettes, and the last time they woke him, at about 0430, 28 November 1967, they grabbed him and forced him outside the terminal. Private SOKOL had a .45 caliber pistol which he thrust into Corporal CLOPPER’s back.

“Once outside, Private First Class CHARLTON and Private SOKOL took Corporal CLOPPER at gunpoint about 20 to 25 feet from the Terminal and demanded that he give them his money. When Corporal CLOPPER protested and tried to talk them out of it, Private First Class CHARL-TON struck him on the chest and told him to shut up. When Corporal CLOPPER continued to try to talk them out of robbing him, Private SOKOL told him to shut up and hit him on the head with the .45 caliber pistol, knocking him to the ground and causing a 11- inch laceration on the head, which required five stitches to close.

“At this point Private First Class CHARLTON and Private SOKOL tied Corporal CLOPPER’S feet with his boot laces, tied his hands behind him and stuffed an old undershirt in his mouth for a gag. They then took him 10 to 15 feet to a one foot deep cement drainage gutter outside the Terminal and dropped him in. Before dropping him in the gutter, Private First Class CHARLTON and Private SOKOL took Corporal CLOP-PER’s money which consisted of $385.00 in Military Payment Certificates and $2.00 in green backs. They then left Corporal CLOPPER and went in the direction of the R & R Center. They were apprehended on 1 December 1967.” [Prosecution Exhibit 2.]

Neither the Uniform Code of Military Justice nor the Table of Maximum Punishments, Manual for Courts-Martial, United States, 1951, paragraph 127c, makes specific provision for the offense of kidnaping, but this Court has held that such an offense constitutes a violation of Article 134, Uniform Code of Military Justice, 10 USC § 934, and is punishable as provided by the District of Columbia Code, 1967 edition, Title 22, section 22-2101.

While the District of Columbia Code may not apply directly, since we look to that source for the limitation on punishment, necessarily its elements should likewise govern the nature of the offense set out under the general article. United States v Jackson, 17 USCMA 580, 38 CMR 378.

The District of Columbia Code provides :

“Whoever shall be guilty of . . . seizing, confining, inveigling, enticing, decoying, kidnaping, abducting, concealing, or carrying away any individual by any means whatsoever, and holding or detaining . . . such individual for ransom or reward or otherwise . . . shall, upon conviction thereof, be punished by imprisonment for life or for such term as the court in its discretion may determine.”

This statute has never been construed by the courts of the District of Columbia. Appellants contend that the severe penalty permissible indicates the law was designed to apply to serious or substantial detentions rather than to insignificant detentions that occurred incident to other offenses and that the question really is not whether such incidental detentions come within the literal language of the statute but whether this was the kind of conduct for which Congress intended to provide a penalty of life imprisonment.

The common-law definition of kidnap-ing required movement from one country to another. This definition has been substantially changed by statute. In considering cases involving offenses of the kidnaping type, courts in the United States have applied the phraseology of the statute controlling in the jurisdiction of the court concerned.

The Federal Kidnaping Act, 18 USC § 1201, is inapplicable here since interstate movement is a jurisdictional requirement for it, nor are we concerned with a violation of state law made a Federal offense by virtue of the Federal Assimilative Crimes Act, 18 USC § 13. Cf. United States v Picotte, 12 USCMA 196, 30 CMR 196.

Analysis of the kidnaping statutes and case law of the several states shows that New York represents a minority of states in holding that brief detentions or short movements “which are incidents to other crimes and have long been treated as integral parts of other crimes” do not constitute kidnaping “even though kidnapping might sometimes be spelled out literally from the statutory words.” People v Levy, 15 NY2d 159, 164, 204 NE2d 842, 256 NYS 2d 793 (1965); Commonwealth v Campbell, 352 Mass 387, 226 NE2d 211 (1967); Macomber v State, 137 Neb 882, 291 NW 674 (1940).

To the contrary, “[u]nder most statutes it is the fact, not the distance, of forcible removal of the victim that constitutes kidnapping,” and “ [g] enerally, the kidnapping statutes fix no requirement of intent on the part of the perpetrator to hold the kidnapped person for any particular length of time.” 1 Am Jur 2d, Abduction and Kidnapping, § 18, page 172.

Some commentators have urged that the New York law, as it was interpreted in the Levy decision, forms the desirable definition of kidnaping. See Notes, “A Rationale of the Law of Kidnapping,” 53 Columbia Law Review 540 (1953); Comments, “Room-to-Room Movement: A Risk Rationale for Aggravated Kidnaping,” 11 Stanford Law Review 554 (1959). The following quotation summarizes the conclusion of one such writer:

“A salient consideration is that virtually all conduct within the scope of kidnapping law is punishable under some other criminal provision: e.g., extortion, homicide, assault, rape, robbery, statutory rape, contributing to the delinquency of a minor, sex perversion and compulsory prostitution. Consequently, the practical effect of kidnapping law is to permit the imposition of additional sanctions when one of these other crimes is accompanied by a detention and aspor-tation. Kidnapping law, therefore, is defensible only if an asportation or detention significantly increases the dangerousness or undesirability of the defendant’s behavior.” [53 Columbia Law Review, supra, at page 556.]

After analyzing other types of kid-naping, this article continues:

“Of the present law of kidnapping, only kidnapping-for-ransom proscribes conduct which, according to these criteria, is invariably of a highly dangerous order. In ransom kidnappings the means by which the victim is subjugated must almost inevitably be forcible; the victim must be subdued for a period of time sufficient to allow the defendant to demand and secure the ransom, and the accomplishment of the defendant’s purpose involves at least a threat to harm or kill the captive. Moreover, since kidnappings-for-ransom follow a stereotyped and, even more important, distinctive pattern, there is little possibility that the sanctions for this crime, understandably high in view of its dangerousness, will be extended to conduct of a less undesirable character.

“With this exception, kidnapping as a separate offense ought to be eliminated, and the behavior now punished as kidnapping assimilated into other categories of the criminal law.” [53 Columbia Law Review, supra, at pages 557-558.]

This is an appealing argument but obviously it is one for consideration by legislative bodies instead of courts.

The District of Columbia Code provision on kidnaping has been amended twice. The 1933 amendment extended the coverage of the law to include cases where a person is not taken out of the District and then increased the maximum punishment from confinement of one to seven years and a fine of $1,000-.00 to life imprisonment. A 1965 amendment to the District of Columbia Code provision broadened its coverage by striking the words, “ ‘for ransom or reward,’ ” inserting in their place the words, “ ‘for ransom or reward or otherwise, except in the case of a minor, by a parent thereof,’ ” (Emphasis supplied.)

In construing the District of Columbia Code provision on kidnaping, we think it is significant that Congress omitted any qualification as to time or distance. The statute does not specify the distance a person must be moved or the length of time that he must be held for him to have been kidnaped. In this case, the victim clearly was “seized,” “carried away,” “held,” and “detained.” Under the statute, such transgressions must be for “ ‘ransom or reward or otherwise,’ ” that is, for any other reason. (Emphasis supplied.) In this instance, the reason for the seizing and carrying away conceivably was to avoid apprehension and to facilitate the flight of the accused from authority. We think the conduct of the accused comes within the literal language of the applicable statute and we are unable to conclude their conduct did not constitute kidnaping.

State court decisions, other than those referred to above, seem to support the position that it is the fact, not the distance, of forcible removal that constitutes kidnaping. In State v Morris, — Minn —, 160 NW2d 715 (1968), the Supreme Court of Minnesota held that removal of complainant a distance of only one hundred or one hundred and fifty feet and detention for five minutes constituted kidnaping although arising out of some behavioral incidents that constituted the basis of a charge for indecent assault. In that opinion, the Minnesota court commented:

“Other courts which have dealt with the problem have come to the conclusion we here reach. In State v Jacobs, 93 Ariz 336, 380 P2d 998, a rape victim was restrained for a half or three-quarters of an hour and forcibly removed from one area of a trailer house to another. The court there held that this activity was sufficient to satisfy the requirements of a statute akin to ours. California has reached the same result in a long series of decisions beginning with People v Chessman, 38 Cal 2d 166, 192, 238 P2d 1001, 1017. The court held in Chessman that the fact the victim was forced to move only 22 feet didn’t make her abduction any the less kidnapping. ‘It is the fact, not the distance, of forcible removal which constitutes kidnaping in this state.’ To the same effect were People v Wein, 50 Cal 2d 383, 399, 326 P2d 457, 466, and People v Monk, 56 Cal 2d 288, 295, 14 Cal Rptr 633, 636, 363 P2d 865, 868.

“After an exhaustive discussion of the history of abduction and kidnapping from their origins, the New Jersey court has held that they are separate crimes which merely overlap. State v Johnson, 67 NJ Super 414, 422, 170 A2d 830, 835. That court, however, admonished prosecutors against invoking kidnapping statutes unless the facts warrant the severe punishment involved in a conviction for that crime.

“Defendant here was sentenced to 20 years, for the kidnapping only and not for the indecent assault, pursuant to Minn St 609.035, which permits punishment for the most serious crime resulting from one behavioral incident. While we share the New J ersey court’s concern lest the punishment provided by statute may be imposed in cases where the circumstances do not warrant it, we cannot say as a matter of law that the legislature did not intend the limited confinement and restraint which occurred in this case to constitute the crime of kidnapping. If under some circumstances the statutory penalty is unduly harsh, it is the duty of the prosecutor, the court, and the correctional authorities to modify the charge, the sentence, or the period of confinement so that it will be commensurate with the gravity of the crime and the harm or potential harm which is inflicted by the defendant.” lid., at page 718.]

The appellants contend that the proper language for a kidnaping statute is contained in the American Law Institute’s Model Penal Code, section 212.1 (Proposed Official Draft, May 4, 1962), which defines kidnaping in the following language:

“A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with . . . the following purposes :

(b) to facilitate commission of any felony or flight thereafter.”

The Proposed Official Draft of this Code has been in existence since 1962. So far Congress has not adopted it for the District of Columbia although, as noted above, the pertinent kidnaping provision was amended in 1965.

We think that the conduct of the appellants falls within the literal language of the District of Columbia statute and that Congress selected the language it intends to apply. A plain and unambiguous statute is to be applied, not interpreted. United States v Davis, 12 USCMA 576, 31 CMR 162. In summary, a penal statute is not to be so strictly construed as to defeat the intent of the legislature. United States v Rowe, 13 USCMA 302, 32 CMR 302.

The decision of the board of review is affirmed.

Chief Judge Quinn concurs.