Moore v. State

Gilbert, J., delivered the opinion of the Court. A jury in the Circuit Court for Anne Arundel County, presided over by. Judge Matthew S. Evans, convicted Thurman Alexander Moore of rape (Md. Ann. Code art. 27, § 461) and kidnapping of a child under the age of sixteen years (Md. Ann. Code art. 27, § 338). Briefly stated, the factual situation out of which the appellant’s convictions arose began at approximately 5 P.M. on April 30, 1973.

At that time the prosecutrix, then age eleven, was riding her bicycle in Clarksville, Howard County, 1 en route to her girlfriend’s house. Moore stopped the automobile that he was operating and asked the young victim for directions to Ellicott City. After she had told him the route, he suggested that she get into the car and show him the way, and that he would then return her to Clarksville. When she demurred on the ground that she was not allowed to enter motor vehicles of strange persons, Moore told her to get into the car or he would “slit her throat”.

The prosecutrix entered the vehicle and was driven to the vicinity of an abandoned farmhouse located off of a dirt road. The prosecutrix and Moore exited the car, and she walked in front of him toward some bushes. Michael H. Schultheis and his girlfriend, who were looking for property in Howard County, happened to be at the location where Moore parked his car. When Moore and the prosecutrix walked past Schultheis’s car, Moore “sort of waved” at Schultheis, and the prosecutrix looked “scared”.

Schultheis’s attention was focused on Moore and' the girl because Moore is a six foot tall black man and the prosecutrix a small, ⁵⁴³ eleven-year old white child. After Moore and the prosecutrix had disappeared into the bushes, Schultheis sent his girlfriend to seek the police, and he flagged a truck and explained what he suspected. The driver of the truck parked in such a manner as to block egress of Moore’s vehicle. The police arrived as Moore and the prosecutrix were exiting the bushes.

In response to a policeman’s question to the prosecutrix as to whether everything was all right, she said “No”, and related to the officer that she had been ravished. I. Appellant argues that: “The evidence produced was not sufficient to support a finding of guilt under Article 27, Section 338 of the Annotated Code of Maryland and the lower court was in error when it failed to grant appellant’s motion for a judgment of acquittal as to the charge of kidnapping and when it improperly instructed the jury as to the nature of the kidnapping charge.” A short history of the Maryland kidnapping law is necessary to a decision on this contention. IV W. Blackstone, Commentaries, * 219 states: “ . . . [K]id7iapping, being the forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another, was capital by the Jewish law; — ‘He that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death.’ So, likewise, in the civil law the offense of spiriting away and stealing men and children, which was called plagium and the offenders plagiarii, was punished with death. This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; therefore the common law of England ⁵⁴⁴ has punished it with fine, imprisonment, and pillory.” (Footnotes omitted).

Article 5 of the Maryland Declaration of Rights (1867) provides that the “[inhabitants of Maryland are entitled to the Common Law of England” as it existed on July 4, 1776 whenever the common law has not been revised, amended, or repealed by the legislature. The first alteration in the common law definition of kidnapping occurred as the result of the enactment of ch. 138, § 4 [1809] Laws of Maryland. That law provided: “10th. Every person, his or her counsellors, aiders or abettors, who shall be duly convicted of the crime of kidnapping, and forcibly or fraudulently carrying, or causing to be carried out of this state, any free person, or any person entitled to freedom at or after a certain age, period or contingency, or of arresting and imprisoning any free person, or any person entitled to freedom at or after a certain age, period or contingency, knowing such person to be free, or entitled to their freedom, as aforesaid, with intent to have such person carried out of this state, shall be sentenced to undergo a confinement in the . . . penitentiary . . . for . . . not less than two nor more than ten years. ...” Subsequent changes thereafter occurred. 2 Section 337 as it appeared at the time of the offense provided: “Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person, except in the case of a minor, 3 by a parent thereof, ⁵⁴⁵ with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony and shall be sentenced to death or to the penitentiary for not more than thirty years, in the discretion of the court.” In 1819 the legislature enacted a special statute relative to children under the age of sixteen years.

At that time the General Assembly passed ch. 132, entitled “An Act to punish the offense of Kidnapping White Children”. The statute provided: “Be it, enacted, by the General Assembly of Maryland, That every person, his or her counsellors, aiders or abettors, who shall be duly convicted of kidnapping, and forcibly or fraudulently stealing, taking or carrying away, any white child or children under the age of sixteen years, shall be sentenced to undergo a confinement in the penitentiary for a period of time not less than five years, nor more than twelve years, there to be treated as the law directs.” The racial aspect of the statute was deleted in 1888 4 so that the law proscribed the “taking or carrying away”, by means of force or fraud, any child. Thereafter, the statute underwent a series of amendments 5 which dealt with the prescribed penalty only. Laws 1935, ch. 284, added the death penalty for violation thereof. 6 Md. Ann. Code art. 27, § 338, the present successor to Laws 1819, ch. 132, provides: ⁵⁴⁶ “Every person, his counsellors, aiders or abettors, who shall be convicted of kidnapping and forcibly or fraudulently stealing, taking or carrying away any child under the age of sixteen years, except by a parent thereof, shall be guilty of a felony and shall be sentenced to death or to the penitentiary for not more than thirty years, in the discretion of the court.” Because § 338 does not contain the language found in § 337, viz., “carrying or causing to be carried out of or within this State,” appellant postulates that the common law, as set forth above, in IV W. Blackstone, Commentaries * 219, has not been changed, and that insofar as the kidnapping of a child under the age of sixteen is concerned, it is mandatory that the prosecution show that the victim was removed to another country.

Moore argues that the failure to include the language “carried out of or within the State”, in § 338, is a legislative oversight 7 requiring reversal of the conviction. We disagree. When the General Assembly in 18Í9 enacted ch. 132 it certainly was cognizant of its passage of the 1809 modification of common law kidnapping. The 1809 legislative modification changed the requirement that a person be shown to have been removed from the country to a showing that he was “carried out of this state”.

Significantly, removal from the State was not an element of the kidnapping of a child if the prosecution was instituted under ch. 132, [1819] Laws of Maryland. A cardinal principle of statutory construction is that if the legislature has “intimated its will, however indirectly, that will should be recognized and obeyed.” Johnson v. United States, 163 F. 30, 32 (C.A.l, 1908). See also Brocker Mfg. v. Mashburn, 17 Md. App. 327 , 301 A. 2d 501 (1973). We think that the legislative intent was to create a special statute for the protection of children and to proscribe the forcible or fraudulent taking or ⁵⁴⁷ carrying away of a child from his or her parent, custodian or guardian regardless of whether the child was asported beyond the territorial confines of Maryland.

Although the legislature subsequently amended § 337 so as to embrace within the crime of kidnapping not only interstate, but intrastate forcible or fraudulent asportation of persons, it was not necessary to amend § 338 in a similar fashion. No amendment to § 338 was needed because the original enactment in 1819 of ch. 132, as we construe it, made it unlawful for anyone in this State to take by force or fraud any child under the age of sixteen years and to transport that child to any place within or without the State. Thus it is not necessary for the State to prove, under § 338, that the child was transported outside the geographical boundaries of Maryland. If the State evidences that the child was taken by force or fraud and then transported, by the accused, such a showing is sufficient to sustain the charge.

Moore further argues that the State did not demonstrate the distance that the victim was transported. The record does reveal, however, that the child was forced by threat of serious bodily harm to enter Moore’s vehicle and was then driven from Clarksville to another location. Appellant’s contention is without merit. “It is the fact of asportation and not the distance which is controlling.” R. Perkins, Criminal Law § 7 at 177 (2d ed. 1953). In State v. Ayres, 198 Kansas 467, 426 P. 2d 21 (1967), the Kansas Court held that a woman who was compelled at the point of a gun to leave her companion’s car and enter the vehicle of an abductor was kidnapped even though the actual distance travelled was eleven feet.

Appellant also declares that § 338 and its ancestors are in derogation of the common law and must be strictly construed. We have so construed it. The purpose of § 338, as set forth above, is transpicuous and “no rule of construction precludes giving a natural meaning” to this legislation. Section 338 must, in the light of its history, be interpreted to effectuate its purpose.

Isbrandtsen Co. v. Johnson, 343 U. S. 779 , 72 S. Ct. 1011 , 96 L.Ed.2d 1294 (1952). We hold that Judge Evans did not err in refusing to ⁵⁴⁸ instruct the jury that in order for appellant to be convicted of violating § 338, the State was required to prove that the victim had been “carried out of the country.” II. Moore next claims that the kidnapping and rape charges merged. He propounds the view that his act of “transporting the girl [was] for one reason and that was the furtherance of rape or other sexual activity and not for the purpose of kidnapping.” To bolster his argument, Moore relies upon People v. Levy, 15 N.Y.2d 159 , 256 N.Y.S.2d 793 , 204 N.E.2d 842 (1965).

In that case the court reversed a kidnapping conviction on the ground that the charge merged with a robbery conviction. The victims had been forced at gun point into the accused’s vehicle which was driven aimlessly for twenty-seven blocks. The time consumed by the drive was twenty minutes. During that period the victims were robbed of jewelry and wallet.

The Court of Appeals of New York held that the restraint on the victims was an integral part of the robbery. Similar holdings are found in People v. Lombardi, 20 N.Y.2d 266 , 282 N.Y.S.2d 519 , 229 N.E.2d 206 (1967) and People v. King, 26 A.D.2d 832 , 273 N.Y.S.2d 925 (1966). This Court, speaking through Judge Thompson in Rice v. State, 9 Md. App. 552 , 267 A. 2d 261 (1970), rejected the New York rule on the basis of its conflict with “a majority of the courts, 17 A.L.R.2d 1003 and . . . with the Maryland doctrine of merger . . . ” as set forth in Stewart v. State, 4 Md. App. 565, 569 , 244 A. 2d 452 (1968), wherein we said: “The true test of merger under the modern doctrine is whether one crime necessarily involves the other, viz., when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense.” We decline to depart from our holding in Rice , and we again specifically reject the New York rule. In the instant case the asportation of the victim, after ⁵⁴⁹ appellant’s having forced her into the vehicle, established the crime of kidnapping.

It was a separate and distinct offense from the rape. The facts necessary to show the