On appeal from Superior Court, Law Division, Cumberland County.
Seidman, Antell and Lane.
By leave granted, the State appeals from an order dismissing the fourth count of an indictment, in which defendant was accused of the abduction of a 16-year-old unmarried female, in violation of N.J.S.A. 2A:86-3. The count was dismissed under N.J.S.A. 2C:1-1c(3) on the ground that the offense allegedly committed was no longer an offense under the Code of Criminal Justice.
A 12-count indictment was returned against defendant and three other men charging them, in addition to the alleged abduction (first, fourth, seventh and tenth counts), with making an assault upon and forcibly against her will ravishing and carnally knowing the female, in violation of N.J.S.A. 2A:138-1 (second, fifth, eighth and eleventh counts) and with breaking and entering a dwelling house "with intent then and there feloniously to ravish and carnally know" the female "forcibly against her will," in violation of N.J.S.A. 2A:94-1 (third, sixth, ninth and twelfth counts).*fn1 No other details of the alleged
offenses are disclosed in the record before us. All were allegedly committed on January 28, 1979.*fn2
The count in question alleged that
In dismissing the fourth count, the trial judge accepted the defense argument that N.J.S.A. 2A:86-3 was a very narrowly drawn statute that addressed itself to very specific behavior and that the offense had not been reenacted in the Code. He rejected the State's contention that "taking a girl forcibly out of her house for the purpose of rape" was embodied in N.J.S.A. 2C:13-1(b)1, kidnapping. The trial judge said that he did not believe "the legislature intended to take the statute, 2A:86-3 and write it into kidnapping."
It is true that in any case pending on or initiated after the effective date of the Code the court is required to dismiss the prosecution if the offense committed is no longer an offense under the provisions of the Code. N.J.S.A. 2C:1-1c(3). Additionally, according to the table showing disposition of statutes annexed to the N.J.S.A. pamphlet containing Title 2C, the fact is that N.J.S.A. 2A:86-3 was "Not Enacted," nor were the related
abduction statutes, N.J.S.A. 2A:86-1 and 2.*fn3 Nevertheless, this does not mean that the conduct described in the pre-Code offenses is now necessarily free of penal sanctions. The conduct alleged in the indictment (not what may or may not be established at a trial) is the key determining factor. The task is to focus on the various provisions of the Code to ascertain whether there is an applicable congruent one for the former law. Cf. State v. Kent , 173 N.J. Super. 215 (App.Div.1980). Our reading of the Code satisfies us that the abduction alleged in the fourth count may in appropriate circumstances be proscribed in the Code as kidnapping.
It is to be noted that the indictment as amended suggests a series of violent acts: the alleged breaking and entering with intent to commit rape upon the female involved, taking her away from the custody of her mother with intent carnally to abuse her, and committing rape upon her. In such case the pertinent violation of N.J.S.A. 2A:86-3 would consist of taking away "an unmarried female, under the age of 18 years, . . . without her consent, from the possession, custody or governance and against the will of her mother, guardian or other person having her lawful custody, with intent to . . . carnally abuse her . . . ." To the extent that the taking away was forcible, against the will of the victim and with the intent to commit carnal abuse, the conduct could constitute kidnapping. In State v. Johnson , 67 N.J. Super. 414, 419, 422 (App.Div.1961), we held that the forcible carrying away of a woman for the purpose of rape fell within ...