Krist v. State , 227 Ga. 85 ( 1970 )

227 Ga. 85 (1970) 179 S.E.2d 56

KRIST
v.
THE STATE.

26117.

Supreme Court of Georgia.

Submitted October 14, 1970. Decided December 3, 1970. Rehearing Denied December 17, 1970.

Mobley Childs, James R. Venable, Margaret Hopkins, for appellant.

Richard Bell, District Attorney, Eugene Highsmith, Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Marion O. Gordon, William R. Childers, Jr., Assistant Attorneys General, for appellee.

FELTON, Justice.

1. The court did not err in overruling the defendant's motion to dismiss the indictment or in charging the jury on the offense designated as "kidnapping for ransom," on the contended ground that such offense is not defined by statute.

Code Ann. § 26-1601 (Cobb, 788; as amended, Ga. L. 1953, Nov. Sess., pp. 99, 100) defines kidnapping as follows: "Every person who shall forcibly abduct or steal away any person, without lawful authority or warrant, and hold said person, without lawful authority or warrant, and hold said person against his will, shall be guilty of kidnapping." Code § 26-1603, as amended by Ga. L. 1937, pp. 489, 490, provides the punishment for kidnapping as follows: "Kidnapping shall be punishable by imprisonment and labor in the penitentiary for not less than four years, nor more than seven years: Provided, that kidnapping for ransom shall be punishable by death: Provided, however, the jury upon the trial of said case may recommend that the defendant be punished with life imprisonment." (Emphasis supplied.)

"For any particular act or conduct to constitute a criminal offense the statute defining the offense, or some other law of the State must in express terms declare such conduct to be a violation of the law or provide that it be punished as a criminal offense. In the latter event the conduct in question is by necessary implication designated a crime." (Emphasis supplied.) Wood v. State, 219 Ga. 509, 511 (134 SE2d 8). From reading in pari materia Code §§ 26-1601 and 26-1603, it is clear that the legislature intended to establish a higher grade of the offense of kidnapping, grounding it in the definition of kidnapping ( § 26-1601) and merely adding the additional element of the purpose of ransom. "Statutory language in defining a criminal offense which conveys a definite meaning as to proscribed conduct when measured by common understanding and practice satisfies due process requirements. United States v. Petrillo, 332 U.S. 1 (67 SC 1538, 91 LE 1877)." Jones v. State, 219 Ga. 848, 850 (136 SE2d 358). The word "ransom" requires no definition. It is not a term of art, technical, or abstract in definition, but conveys a definite meaning within the standards of the Petrillo case, supra. As was pointed out in Jones, supra, any person of common intelligence (and particularly one who had the intelligence to plan and execute such an elaborate scheme as was here perpetrated) may determine whether the particular acts and conduct charged him with improper conduct, i. e., kidnapping for ransom.

Enumerated errors 2, 19, 20, 21, 22, 23, 24 and 25 are without merit.

2. The evidence, as summarized in the statement of facts hereinabove, amply authorized the verdict of guilty. Every element of the offense of kidnapping for ransom was proven. It was shown that the defendant did "forceably abduct or steal away" the person of Barbara Mackle, "without lawful authority or warrant," from DeKalb County, Georgia, "and send or convey such person beyond the limits of the . . . county [i. e., to Gwinnett County, Georgia] .. against [her] will" and that he demanded and received a ransom in return for revealing the location where he had buried her alive. The defendant was linked with the commission of that offense by the testimony of numerous witnesses who made positive identification of him. Enumerated error 1 is without merit.

3. In enumerated errors 15 and 16 the appellant attacks the search of his automobile upon two grounds: (1) that it was unlawfully seized and taken to the F. B. I. headquarters in Miami, and (2) that the search warrant obtained afterward is invalid. The facts, that two individuals, one of whom had been armed, had been seen near the automobile and that a suitcase containing the ransom money from the kidnapping had been discovered near the automobile, would have supported probable cause for the issuance of a search warrant to search the automobile where it was parked. Williams v. United States, 412 F2d 729 (5th Cir., 1969). Under the circumstances, the law enforcement officers gained lawful custody of the automobile where it was parked, and appellant does not show that its seizure and transfer deprived him of any constitutional right or altered the legality of the custody, especially since no search was made thereof until they had obtained a valid search warrant, which is a part of the record in this case. Since the automobile was searched in a lawful and reasonable manner, the items seized during that search were admissible in evidence and the court, therefore, did not err in admitting them.

4. Enumerated error 17 contends that the venue of the case was not in DeKalb County, Georgia, since some incidents in the commission of the crime occurred in other counties and the ransom was paid and received in the State of Florida. "All criminal cases shall be tried in the county where the crime was committed..." Art. VI, Sec. XIV, Par. VI of the Constitution of 1945 (Code Ann. § 2-4906). See also Code § 27-1101. Prior to its amendment in 1953, Code § 26-1601 provided as follows: "Every person who shall forcibly abduct or steal away any person, without lawful authority or warrant, from this State or any county thereof, and send or convey such person beyond the limits of the State or a county thereof against his will, shall be guilty of kidnapping." (Emphasis supplied.) Although we have found no Georgia case directly ruling on the venue of criminal prosecutions for kidnapping for ransom, all of the Georgia cases involving kidnapping have been tried in the county in which the victim was seized and the question of venue apparently was not raised. Ga. L. 1953, Nov. Sess., pp. 99, 100, amended § 26-1601, as the preamble to the Act states, "... so as to eliminate therefrom the requirement, as one element of the offense, that the person kidnapped be taken beyond the limits of the State or county ..." If venue was in the county from which the victim was seized even while the statute made the offense not complete until the victim was taken or sent beyond the limits of such county, then a fortiori, venue is still in such county now that the crime can be committed wholly within one county. This is in accordance with the general rule in other jurisdictions. See 22 CJS 463, Criminal Law, § 185 (3). Furthermore, a showing that ransom was actually paid is not necessary to constitute the offense, but is one method of demonstrating the intent of the defendant at the time the victim's person is seized. This enumerated error is without merit.

5. Enumerated error 18 complains of the following excerpt from the charge of the court: "I charge you further that flight, if proved in certain circumstances, may be considered in the trial of a person charged with the commission of a crime, you being the judges of whether or not any flight has been proved, the law being that flight, if any, and similar actions, if proved — and you are the judges of whether or not any flight has been proved from which an inference of guilt may be deducted [sic] — may be considered by the jury, but flight is subject to explanation." (Emphasis supplied.) The inclusion of the words, "and similar actions," without an instruction to the jury as to what specific similar actions they were allowed to consider, was not harmful or prejudicial, as contended. See Woodruff v. State, 204 Ga. 17 (2) (48 SE2d 885); Kalb v. State, 195 Ga. 544, 550 (25 SE2d 24). This enumerated error is without merit.

6. "Grounds of a motion for a new trial which are not argued in this court are deemed to have been abandoned, whether enumerated as error or not." Jackson v. State, 225 Ga. 790 (6) (171 SE2d 501). For this reason, enumerated errors 3 through 14, inclusively, are not ruled on.

The trial court did not err for any of the reasons urged in entering the judgment on the verdict and overruling the amended motion for a new trial.

Judgment affirmed. All the Justices concur.