State v. Penley

Annotate this Case

178 S.E.2d 490 (1971)

277 N.C. 704

STATE of North Carolina v. Jerry PENLEY.

No. 88.

Supreme Court of North Carolina.

January 20, 1971.

*491 Parker & Dickens, by William F. Dickens, Jr., Enfield, for defendant appellant.

Robert Morgan, Atty. Gen., by Millard R. Rich, Jr., and Andrew A. Vanore, Jr., Asst. Attys. Gen., for the State.

HUSKINS, Justice.

Defendant contends the trial court erred in denying his motion to quash the bill of indictment, arguing that the common law definition of kidnapping must be used in a kidnapping indictment in order to inform the defendant of the charges against him. No authority is cited for his position.

G.S. § 14-39 provides in pertinent part: "It shall be unlawful for any person * * *, male or female * * * to kidnap * * * any human being * * *. Any person * * * violating * * * any provisions of this section shall be guilty of a felony * * *."

We held in State v. Lowry and Mallory, 263 N.C. 536, 139 S.E.2d 870 (1965), that the failure of G.S. § 14-39 to define kidnapping did not render the statute vague or uncertain and that the common law definition of the offense is incorporated in the statute by construction. "* * * [W]hen a statute punishes an act giving it a name known to the common law, without otherwise defining it, the statute is construed according to the common-law definition." 22 C.J.S. Criminal Law § 21; Johnson v. Commonwealth, 209 Va. 291, 163 S.E.2d 570 (1968); State v. McLarty, 414 S.W.2d 315 (Mo.1967); State v. Taylor, 46 N.J. 316, 217 A.2d 1 (1966).

At common law and as used in G.S. § 14-39, the word "kidnap" means the unlawful taking and carrying away of a person by force and against his will. State v. Lowry and Mallory, supra. "The use of actual physical force or violence is not always essential to the commission of the offense of kidnapping * * *. The crime of kidnapping is frequently committed by threats and intimidation and appeals to the fears of the victim which are sufficient to put an ordinarily prudent person in fear for his life or personal safety, and to overcome *492 the will of the victim and secure control of his person without his consent and against his will, and are equivalent to the use of actual force or violence." State v. Bruce, 268 N.C. 174, 150 S.E.2d 216 (1966).

Here, the bill of indictment is drafted in the language of the statute. It charges defendant with kidnapping without defining the word. This is sufficient. If an indictment charges the offense in a plain, intelligible, and explicit manner and contains averments sufficient to enable the court to proceed to judgment, and to bar a subsequent prosecution for the same offense, it is sufficient. State v. Anderson, 259 N.C. 499, 130 S.E.2d 857 (1963); State v. Daniel, 255 N.C. 717, 122 S.E.2d 704 (1961). An indictment for a statutory offense is sufficient, as a general rule, when it charges the offense in the language of the statute. State v. Hord, 264 N.C. 149, 141 S.E.2d 241 (1965); State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638 (1963); State v. Wells, 259 N.C. 173, 130 S.E.2d 299 (1963).

In State v. Turner, 268 N.C. 225, 150 S.E.2d 406 (1966), a bill of indictment charging that defendant "unlawfully, wilfully, feloniously and forcibly did kidnap" a named person was held sufficient to withstand a motion to quash, since the word "kidnap" has a definite legal meaning. It follows, therefore, that defendant's challenge to the sufficiency of the bill of indictment in this case is without merit and is overruled. We think the bill adequately informed defendant of the charge against him and that he understood it.

On cross-examination of a defense witness, the solicitor, over defendant's objection, asked: "How many times have you and Mr. Penley and Mr. Shores and Mr. Pope and anyone else talked about this case?" Again over objection, the solicitor asked another defense witness: "Who planned the whole escape?" A third time, over objection, the solicitor asked the witness on cross-examination: "I ask you if you have not talked to * * * police officers and told them you didn't know anything or did not see anything?" Defendant contends the solicitor was permitted in this manner to create the impression before the jury that defendant had conspired with his witnesses concerning their testimony and that defendant planned the escape, all of which was collateral to the main issue and had no relevancy to the kidnap charge against him.

This assignment of error has no merit. North Carolina adheres to the "wide-open" rule of cross-examination, so called because the scope of inquiry is not confined to those matters testified to on direct examination. Note, 45 N.C.L.Rev. 1030 (1967). In State v. Dickerson, 189 N.C. 327, 127 S.E. 256 (1925), the Court said: "The cross-examination is not confined to matters brought out on the direct examination, but questions are permissible to impeach, diminish, or impair the credit of the witness. These questions often take a wide range, but should be confined to questions within the bounds of reasonthe materiality is largely left to the discretion of the court." See also State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970); State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195 (1959); Stansbury, North Carolina Evidence (2d Ed., 1963) §§ 56-57; Jones on Evidence, (5th Ed., 1958) §§ 928-929.

Questions and answers which directly challenge the interest or credibility of a witness are competent. State v. Hart, 239 N.C. 709, 80 S.E.2d 901 (1954). Both the State and the defendant have a right to cross-examine a witness to show his bias or interest. State v. Wilson, 269 N.C. 297, 152 S.E.2d 223 (1967); State v. Creech, 229 N.C. 662, 51 S.E.2d 348 (1949). And for the purpose of impeachment, prior inconsistent statements of a witness are always *493 admissible. State v. Cope, 240 N.C. 244, 81 S.E.2d 773 (1954).

The evidence in this case shows that the prosecuting witness wanted to get off the bus and requested permission to do so. This request was refused by defendant, who held a rifle pointed at Carter while the bus continued to travel. The distance traveled is not material, State v. Lowry and Mallory, supra, although the evidence shows Carter was held captive for a mile or more. The defendant by force and threat of violence took Carter and carried him where he did not consent to go. This constitutes kidnapping under our statute. The verdict was proper and will be upheld.

No error.