Opinion
No. 38294.
February 4, 1952.
1. Indictments — kidnapping — duplicity — assault and battery.
An indictment for kidnapping which named the statute under which the prosecution is had and which charged in substance that the accused did unlawfully and feloniously make an assault upon the victim and did forcibly and unlawfully lay hold of, and seize and confine and kidnap her, was not duplicitous as charging also the crime of assault since the averred assault was merely a means of carrying out the principal crime charged, and was necessarily involved therein.
Headnote as revised by Alexander, Jr.
APPEAL from the circuit court of Warren County; R.B. ANDERSON, Judge.
Gore Gore, for appellant.
The indictment charges appellant with the crimes of assault and kidnapping. The maximum penalty to which appellant could have been sentenced is different for each offense.
Chief Justice Smith in McEwen v. State, 96 So. 690, stated the following: "The two felonies charged in the indictment differ materially, both in their elements and their punishments, and consequently the court below should have sustained the demurrer to the indictment in whole or to one count, or have compelled the State to elect on which count the appellant should be tried."
Justice Whitfield in State v. Rees, 22 So. 829 stated the following: "* * * The indictment therefore seeks to charge two distinct felonies, of different degrees and different punishments. A demurrer was interposed on this ground, among others, and sustained, and the indictment quashed, no leave to amend being applied for. The Court exercised the discretion given it in such cases correctly, that the prisoner might not be embarrassed in his defense, and relieved itself of the embarrassment which might have arisen as to what judgment to render on a general verdict of guilty. That the action of the Court was correct, objection being properly taken by demurrer, is settled."
After hearing the evidence produced, being instructed by the court as to the law and hearing the argument of counsel, the jury retired and brought out the following verdict: "We, the jury, find the defendant guilty as charged in the indictment". What was he found guilty of? Assault and battery? Kidnapping? Both?
The trial court evidently thought that he had been convicted of kidnapping. The sentence was for ten years. We submit that the record in this cause does not show whether appellant was convicted of kidnapping or assault.
Joe T. Patterson, Assistant Attorney General, for appellee.
In 42 C.J.S., par. 170, p. 1127, it is said, "An indictment is not double because it charges several related acts, all of which enter into and constitute a single offense, although such acts may in themselves constitute distinct offenses and although one of the offenses is a felony and the other a misdemeanor. In the case of crimes in the commission of which an assault is involved, both the assault and completed crime may be charged." Peters v. State, 177 Ga. 772, 171 S.E. 266.
The indictment herein charges the crime of kidnapping in the exact language of the statute, and goes further and specifically informs the appellant that the crime is charged under Sec. 2237 Code 1942. It is true that the word "assault" does not appear in the statute, and the phrase "did make an assault" appears in the indictment. How could a person commit the crime of kidnapping without also committing as assault upon the person kidnapped?
The statute uses the words "forcibly seize and confine another". How could a person "forcibly seize and confine" a person without committing an assault upon such person?
The appellant appeals from a conviction of kidnapping. The charge is laid under Code 1942, Section 2237. The only assignment of error is directed to the action of the trial court in overruling a demurrer to the indictment. The ground of the demurrer was duplicity. The indictment in substance charges that the appellant did unlawfully and feloniously make an assault upon the victim, and did forcibly lay hold of her and unlawfully and forcibly did seize, confine and kidnap her, without her consent, and against her will, with the intent to cause her to be deprived of her liberty.
Attack is made upon that part of the indictment which charges an assault. The statute referred to uses the following language: "Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other with intent to cause such person to be secretly confined or imprisoned in the state against his will, or * * * to cause such other person to be deprived of his liberty, or in any way held to service against his will, * * *." etc.
It will be seen at once that every unlawful and forcible kidnapping and confining necessarily involves as a constituent element the crime of false imprisonment. State v. Olsen, 76 Utah 181, 289 P. 92; Wharton, Criminal Law, (12th Ed.) Section 779. Such crimes as robbery by putting in fear necessarily include an assault, and if by violence to the person, involve a battery. The indictment is particular in setting out the exact section under which the prosecution is had and by both the language of the indictment and the reference to the statute sufficiently informed the accused of the nature and cause of the accusation against him. It is therefore not duplicitous merely because the means of carrying out the crime charged involves as an element that which would constitute a crime. Peters v. State, 177 Ga. 772, 171 S.E. 266; Hosier v. U.S., 5 Cir., 64 F.2d 657, certiorari denied 290 U.S. 677, 54 S.Ct. 100, 78 L.Ed. 584; 42 C.J.S., Indictments and Informations, Sections 164, 170.
It is our conclusion therefore that the trial court was correct in overruling the demurrer to the indictment.
Affirmed.
Hall, Lee, Kyle and Arrington, JJ., concur.