State v. Hoots , 33 N.C. App. 258 ( 1977 )

HEDRICK, Judge.

Subsection (a) of G.S. 14-39, the kidnapping statute which became effective on 1 July 1975, provides:

“Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

(1) Holding such other person for ransom or as a hostage or using such other person as a shield; or

(2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony; or

(3) Doing serious bodily harm to or terrorizing the person so confined, restrained or removed or any other person.”

Defendants contend the court erred in denying their motion for judgment as of nonsuit made at the close of the State’s evidence and renewed at the close of all the evidence. We hold that the evidence was sufficient to require the submission of the cases to the jury as to these defendants on the charges of kidnapping.

Defendants excepted to and assign as error the following portions of the court’s instruction to the jury:

“In order for you to find any defendant guilty of aggravated kidnapping there are six things that the State must prove each beyond a reasonable doubt. . . . Third, that the defendant did this [unlawfully confined, restrained, or removed from one place to another either of the victims] for the purpose of obtaining information or terrorizing either Mr. Gilbert or Mr. Johnson, or both or neither (sic) . . . . Therefore, I charge you that if you find from the evidence and beyond a reasonable doubt that . . . Mr. Hoots or Mr. Pace unlawfully restrained Mr. Gilbert or Mr. Johnson or both or participated in the removal of either from Cove Mountain to another place for the purpose of obtaining information from Mr. Gilbert or Mr. Johnson, or for the purpose of terrorizing Mr. Gilbert or Mr. Johnson ... it would be your duty to return a verdict of guilty as to that particular charge. . . . Therefore, I charge you that if you find from the evidence and beyond a reasonable doubt that . . . either defendant unlawfully restrained Mr. Gilbert or Mr. Johnson, or removed him or participated in the removal of him from' Cove Mountain to a place where he was tied to a tree . . . and that he did this for the purpose' of obtaining information or terrorizing either of these victims . . . then the defendants would be guilty of kidnapping.” (Emphasis added.)

The challenged instruction permitted the jury in this case to find either of the defendants guilty of kidnapping if they found from the evidence that he confined, restrained, or removed from one place to another Gilbert or Johnson for the purpose of obtaining information, even though such a purpose is not one of the proscribed purposes set out in G.S. 14-39(a). For error in the charge defendants are entitled to a new trial.

It is not necessary that we discuss defendants’ numerous other assignments of error.

New trial.

Judges Morris and Arnold concur.