Price, Gaulkin and Sullivan. The opinion of the court was delivered by Gaulkin, J.A.D.
[67 NJSuper Page 416] Defendant James Johnson was convicted of rape, and sentenced to 20 to 30 years in prison.
Defendants Thornton Pugsley, John Cowan and Leroy Johnson were convicted of rape and kidnapping, and sentenced to consecutive sentences of 20 to 30 years for the rape, and 30 to 35 years for the kidnapping, or a total of 50 to 65 years. All four appeal.
The four defendants, together with seven others, were charged in one indictment with the rape of one C.J., and, in a separate indictment, with kidnapping her. Over the objections of the defendants, the two indictments were consolidated for trial. All 11 defendants were tried together. Five were acquitted by direction of the court at the end of the State's case. Two more were acquitted by the jury.
Defendants' first ground of appeal is that the trial of 11 men, each charged with kidnapping and rape, in one consolidated trial was in derogation of the right to a fair and impartial jury trial, guaranteed by the New Jersey and U.S. Constitutions.
Two or more indictments may be tried together when, as here, they "are based on the same act or transaction." R.R. 3:4-7, 3:5-6. Since the evidence which proved the rape included the evidence of the kidnapping, it was a proper exercise of the court's discretion to order the consolidation.
Although the consolidation of the two indictments was objected to, no defendant objected to the 11 being tried together, and none asked for a severance. However, defendants argue that the trial of all 11 together was "plain error."
The decision whether they were to be tried separately or together had to be made before the trial began. Not only was there no request for a severance, but there was nothing before the court at that time to indicate that a severance was necessary, or even that the defendants would have consented to separate trials. Cf. State v. Baum , 64 N.J.L. 410 (Sup. Ct. 1900). Nor did anything happen during the trial which demonstrates that it was plain error not to have ordered separate trials. State v. Johnson , 31 N.J. 489, 505
(1960); State v. Rios , 17 N.J. 572 (1955); State v. Treficanto , 106 N.J.L. 344, 353 (E. & A. 1929).
Defendants contend that "the alleged asportation of complaining witness, if a separate indictable offense, falls within the purview of the abduction statute * * * rather than the kidnapping statute."
The essential facts that relate to this point are that C.J. and one or more of her girl friends had been at a party in Newark, in the neighborhood of which they had seen and spoken to one or more of the 11 defendants. As C.J. and her friends were walking on Springfield Avenue, on their way home, two automobiles occupied by the 11 defendants stopped. C.J. testified that "Leroy Johnson grabbed me from the back and he had the knife at my throat and he dragged me to this car which was parked against the curb and had my head down, and he asked me if I wanted to die. One of the boys inside said, 'Hey, boy, throw her inside the car.' And that's what he did." She was driven to a parking lot where, she said, she was raped 11 times by the occupants of the two cars.
In State v. Dunlap , 61 N.J. Super. 582 (App. Div. 1960) this court sustained convictions of rape and kidnapping in circumstances similar to those at bar. We held, in effect, that rape and kidnapping are separate crimes even when the kidnapping is for the purpose of the rape. Defendants do not attack that holding. Their contention is that carrying off a woman against her will for the purpose of rape is abduction, punishable only under N.J.S. 2 A:86-1 et seq. , the abduction statute, and not under 2 A:118-1, the kidnapping statute. For that proposition defendants rely upon Judge (now Chief Judge) Desmond's opinion for the three dissenters in People v. Florio , 301 N.Y. 46, 92 N.E. 2 d 881, 17 A.L.R. 2 d 993 (Ct. App. 1950). The State counters with the opinion in the same case written for the four man majority by Judge Conway.
Although both opinions in the Florio case are interesting and instructive, the answer to the question raised by defendants
here necessarily depends upon the construction of our own kidnapping and abduction statutes.
The forcible carrying away of a woman for the purpose of rape falls within the literal meaning of both statutes. However, it is neither impossible nor necessarily illegal for two or more statutes, because of overlapping, to define and punish the same act, even when that gives the State the right to proceed under either statute. State v. Fary , 16 N.J. 317, 321-325 (1954); State v. Labato , 7 N.J. 137 (1951). On the other hand,
"Where two criminal or penal statutes punish the same act it is the duty of the court, having due regard for other rules of construction, to construe the statutes in the manner most favorable to the accused. Therefore, when the later enactment is less harsh than the earlier one that should be deemed to repeal by implication the earlier one." State v. Brillo Mfg. Co. , 63 N.J. Super. 287, 295 (App. Div. 1960).
Under the early English law, kidnapping and abduction were very clearly separate and distinct crimes. Blackstone tells us (Commentaries, Book IV, p. 208) that "forcible abduction * * * is vulgarly called stealing an heiress." It was a statutory crime "For," said he, "by statute 3 Hen. VII, c. 2, it is enacted that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, [or] being heir-apparent to her ancestors, contrary to her will, and afterwards she be married to such misdoer, or by his consent to another, or defiled; such person, his procurers and abettors, and such as knowingly receive such woman, shall be deemed principal felons. * * *" Blackstone added that
"in the construction of this statute it hath been determined, -- 1. That the indictment must allege that the taking was for lucre; for such are the words of the statute. 2. In order to show this, it must appear that the woman has substance, either real or personal, or is an heir-apparent. 3. It must appear that she was taken away against her will. 4. It must also appear that she was afterwards married or defiled. And though possibly the marriage or
defilement might be by her subsequent consent, being won thereto by flatteries after the taking, yet this is felony, if the first taking were against her will; and so vice versa, if the woman be originally taken away by her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may from that time as properly be said to be taken against her will as if she never had given any consent at all; for till the force was put upon her she was in her own power."
Kidnapping, on the other hand, was a common law crime, which Blackstone defined (p. 219) as "the forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another. * * *"
We presume that, in Blackstone's time, if a woman had been taken forcibly from England into a foreign country, the Crown could have charged the taker with kidnapping or, if the necessary elements existed, abduction. In all other cases, the crimes were distinct.
The same clear distinction between the two crimes appeared in our first abduction and kidnapping statutes. In the "Act for the Punishment of Crimes" passed in 1796 (Paterson Laws of New Jersey , 1800, p. 208), section IX (p. 209) defined abduction. It eliminated the requirement that the woman have "substance," but otherwise it reflected the purpose behind the ancient English statute, for it provided that the abductee's marriage "shall be void; and also, the person to whom such woman shall be so married, shall not receive, take, hold, possess or enjoy any part of her estate, real or personal, by any gift, grant, bequest or devise, of, from, or under her. * * *" The penalty for abduction was imprisonment for not exceeding 12 years. Section LIV of the same act (p. 218) defined kidnapping (of those over 14 years of age) substantially as did Blackstone, including as a necessary element that the defendant "carry such man, woman or child from this state into another state or country."
For almost a hundred years the Legislature, it seems, considered abduction more serious than kidnapping, for the penalty for kidnapping was a fine not exceeding $1,000 or
imprisonment not to exceed five years, or both. Beginning in 1875 New Jersey apparently began to consider kidnapping more serious than abduction. In that year (L. 1875, c. 294, p. 51) the penalty for kidnapping was increased to a fine not to exceed $5,000 or imprisonment not exceeding 20 years, or both; and in 1898 the requirement that, to constitute kidnapping, the victim must be transported out of the State, was abolished by L. 1898, c. 235, § 114, p. 826. The latter change made the statute, in terms, broad enough to include forcible abduction. Cf. State v. Dunlap, supra. In 1907 (L. 1907, c. 55) the penalty for kidnapping was increased even further, to imprisonment for a minimum of five years, to life; in 1928 (L. 1928, c. 182) to a minimum of 30 years, to life; and in 1933 (L. 1933, c. 374), if the kidnapping be for ransom, to a mandatory life or death sentence, as fixed by the jury. In 1933 (L. 1933, c. 322, now N.J.S. 2 A:118-2 and 2 A:105-4) threatening or attempting to kidnap was made punishable by imprisonment for not more than 30 years, or by a fine of not more than $5,000, or both. Compare the severity of these statutes with N.J.S. 2 A:86-2, which punishes abduction of a female "with intent to compel her by force * * * to be defiled," with a maximum of seven years or $2,000 fine, or both, and N.J.S. 2 A:86-3, which provides that "any person who conveys or takes away an unmarried female, under the age of 18 years, with or without her consent * * * with intent to * * * carnally abuse her, or to use her for immoral purposes" is guilty only of a misdemeanor, unless "he marries her, without the consent of her father, mother, guardian or other person having her legal custody" in which case "he is guilty of a high misdemeanor." Note also that N.J.S. 2 A:90-2 (assaults with intent) and 2 A:94-1 (breaking and entering with intent) mention kidnapping but not abduction.
The abduction statute, on the other hand, has undergone little change since 1796, practically none since 1898, and none at all since 1921. See L. 1898, c. 235, § 116, p. 826; L. 1906, c. 65; L. 1910, c. 10; L. 1921, c. 22. None of
these changes are significant here, except as above noted. The abduction statute became chapter 86 and the kidnapping statute chapter 118 of Title 2A, by L. 1951, c. 344.
Defendants argue that the persistence of abduction and kidnapping as separate crimes, defined in separate statutes, proves that the Legislature meant to preserve the distinction between the crimes which existed in our early law, and did not intend to permit the prosecution of abduction for rape under the kidnapping statute. But see State v. Trosla , 4 N.J. Misc. 678, 679 (Sup. Ct. 1926). However, we find no evidence of any such intent in the various changes which broadened and toughened the kidnapping statute. Indeed, that very broadening and toughening negatives the idea that the Legislature gave any thought to being lenient to any specific type of kidnapping. That has been the construction of "Lindbergh laws" in other jurisdictions. 31 Am. Jur., Kidnapping, pp. 352-357; State v. Dunlap, supra. Whether this indiscriminate toughness, which makes all types of kidnapping punishable with a minimum sentence of 30 years, is too severe, is for the Legislature to decide.
We agree with defendants that abduction and kidnapping are still separate crimes, and that the kidnapping statute did not repeal any portion of the abduction statute by implication; but we are unable to agree that forcible abduction for the purpose of rape is excluded from the scope of the present kidnapping statute. Cf. State v. Trosla , 4 N.J. Misc. 678, 679 (Sup. Ct. 1926). If that were so, the State would have to prove in every kidnapping prosecution that the kidnapping was done with intent other than to rape or (in cases covered by N.J.S. 2 A:86-3) to carnally abuse. Such a construction might encourage raping or carnally abusing the female victim of a kidnapping.
In short, we conclude that the abduction and kidnapping statutes merely overlap, and that the prosecution has the right to elect under which statute it will proceed, where the ...