Opinion
Decided May 26, 1930.
Criminal law — Kidnaping — Section 12424, General Code — Intent to carry person out of state unnecessary, when — Co-conspirator — One entering and riding in automobile while others carrying prisoner away.
1. Intent to carry person out of state is not necessary to constitute "kidnaping," and provision in Section 12424, General Code, regarding such intent refers to unlawful imprisonment.
2. One entering automobile, furnishing revolver, and riding in back seat with prisoner while others were carrying prisoner away held co-conspirator in "kidnaping" (Section 12424, General Code).
ERROR: Court of Appeals for Lucas county.
Mr. Robert F. Bartley, for plaintiff in error.
Mr. Leroy W. Hunt, prosecuting attorney, and Mr. Clarence A. Irwin, for defendant in error.
Plaintiff in error, Paul Samson, was convicted under an indictment which charged that on November 26, 1929, he, with three others, did unlawfully and fraudulently and without any lawful warrant or authority, seize, take, steal, and kidnap one Theodore Glaze, and did unlawfully, forcibly, violently, and against his will carry him off.
The facts in the case are not in controversy. About 11 o'clock on the night named, Conrad Samson, a brother of Paul Samson, Carl Smith, known in the record as "Gyp," and Harold Ritchie, engaged in the city of Toledo a taxicab owned by the Waldorf Cab Company and operated by the complaining witness, Theodore Glaze, as a taxi driver. Theodore Glaze, by the direction of the three men named, drove about the city for a short time, and they then ordered him to pull up at the curb on Shepler street in the southwestern part of the city. When he did so they blindfolded him, and ordered him to surrender the wheel of the cab and occupy the rear seat. Shortly after that the three men named robbed him of the money which he had on his person. They thereupon drove the cab, with Glaze and one of the conspirators in the rear seat, to the village of Holland in Lucas county, where they were joined by Paul Samson, the plaintiff in error. In the hearing of Glaze, Paul was asked to bring his revolver which he did. Paul occupied the rear seat of the cab with Theodore Glaze, and all of the party thereupon proceeded into the country, the revolver being fired once or twice, evidently for the purpose of terrifying Glaze, who all the time was kept blindfolded and threatened with being "bumped off." Paul Samson testified that when he was in the car he surmised that Glaze had been robbed, and knew that the others were using his car. Ultimately they drove across the Maumee river near Perrysburg, and ordered Glaze to get out of the car, which he did, and thereupon the plaintiff in error and his three associates drove off with the car.
It was about two hours from the time Glaze was blindfolded until he was summarily ordered out of the car, still blindfolded, and during that time, while the car was being operated by one of the men, they had a collision which partially wrecked the car. Late in the night, after disposing of Glaze as already stated, they drove back into the city of Toledo, and the police, discovering the condition of the car, pursued and arrested some of the parties that same night, the others being arrested shortly thereafter.
It is contended on behalf of Paul Samson, plaintiff in error, that under the facts shown he is not guilty of the charge contained in the indictment. The robbery was committed before he joined the party at Holland, and the original forcible and fraudulent taking possession of the person of Glaze was performed before that time. The guilt or innocence of Paul Samson depends upon the construction to be placed on Section 12424, General Code, under which he was prosecuted. That section reads:
"Whoever kidnaps, or forcibly or fraudulently carries off, detains or decoys a person, or unlawfully arrests or imprisons a person with the intention of having such person carried out of this state, shall be imprisoned in the penitentiary not less than one year nor more than twenty years."
Counsel for Paul Samson insists that under the statute quoted the crime of kidnaping can only be committed if it is done with the intention of carrying the person kidnaped out of the state. We do not so construe the statute. Certainly the evidence does not indicate any intention on the part of Paul Samson or his associates to carry Glaze out of the state. The statute, fairly construed, provides a punishment for whoever kidnaps or forcibly or fraudulently carries off, detains, or decoys a person, and it also provides a like punishment for whoever unlawfully arrests or imprisons a person with the intention of having such person carried out of the state. It will be noticed that the word "person" follows after the words, "kidnaps, or forcibly or fraudulently carries off, detains or decoys." Thereafter the word "person" is again used, followed by the phrase "with the intention of having such person carried out of this state." In the last-quoted clause the words "such person" relate to the "person" mentioned immediately preceding, and that is the person who has been unlawfully arrested or imprisoned. In other words, the phrase "with the intention of having such person carried out of this state" does not reach back and modify all the preceding provisions. It will be noticed also that there is no comma in the clause "unlawfully arrests or imprisons a person with the intention of having such person carried out of this state." In the judgment of this court, the statute will not bear such a construction as to make it lawful to kidnap or forcibly or fraudulently carry off, detain, or decoy a person, when such acts are committed without the intention of having the person carried out of the state.
A similar view is expressed in 1 Ohio Jurisprudence, 131, Section 3, where the form of an indictment for kidnaping does not include a charge that it was with the intention of carrying the abducted person out of the state. In 2 Bishop on Criminal Law (9th Ed.), 573, Section 750, kidnaping is defined as a false imprisonment aggravated by conveying the imprisoned person to some other place, and the author further states that it is a continuous crime, beginning with the taking and ending with the return of the kidnaped person. In Section 756a, the same author restates the doctrine as follows:
"At common law a false imprisonment consists of a restraint or detention of one against his will, by physical force, or by such an array or threatening thereof as overpowers his will. When to this is added the removal of the imprisoned person to some other place, the offense becomes kidnaping."
It is true, the opposite view is expressed in Patterson's Criminal Code (3d Ed.), 676, as indicated by the form of an indictment therein set forth, but we are not in accord with the position taken in that book.
Kidnaping is a continuing act, and the act was persisted in after Paul Samson joined the other three conspirators, and he knowingly participated in the act by furnishing a revolver and riding in the back seat with the prisoner, and thus became one of the four conspirators, at least from that time on.
Finding no error, the judgment will be affirmed.
Judgment affirmed.
WILLIAMS and LLOYD, JJ., concur.