People v. Weiss , 276 N.Y. 384 ( 1938 )

I must dissent from the conclusions of Judge O'BRIEN in this case, upon three grounds:

First. I believe that the charge and rulings of the court were correct, and that the law has been well stated by Judge JOHNSTON in the prevailing opinion. (252 App. Div. 463, 465.) The fact that the defendants may have thought they had authority to confine Wendel is no excuse for the criminal act and no defense. The crime of kidnapping is committed when a person seizes and confines another with intent to cause him to be confined or imprisoned within the State, and the act is done without lawful authority. The fact that the person thought he had lawful authority has nothing to do with the matter. The intent applies to the seizing and to the confining. The defendants in this case intended to seize Wendel and to confine him within the State. In fact they confined him, bound, in Schlossman's home. Whether they thought they were acting according to law or not, or had legal authority, is no defense. They had no legal authority, and the judge so charged as matter of law. In this he was correct, for such is the law. In fact no one claims they had any legal authority. Where, therefore, one is seized, taken away and secretly confined, and it turns out that the person doing it had no legal authority to do it, the crime of kidnapping is committed. Of course if there be legal authority there is no crime, but the fact that the person mistakenly thought that they had authority does not lessen the crime. The charge of the court, in my judgment, was correct, in accordance with the authorities of this State. In People v. Camp (139 N.Y. 87, 91), Judge EARL, writing in reference to the crime of kidnapping, as defined in the Revised Statutes (2 R.S. § 28), says: "Every person who shall without lawful authority forcibly seize and confine any other, * * * with intent * * * to cause such other person to be secretly confined or imprisoned in this state against his will," is guilty of kidnapping. This is the Revised Statutes, and you see at once that the intent has reference to the confining and to the seizing, and does not apply to the intent to do it contrary to law. Persons are supposed to know the law; and believing that the law gives them right to do things does not rob acts of criminal consequences. Judge EARL says that these words have now been carried over into the Penal Code, and so we find them in our Penal Law, section 1250.

So in Mandeville v. Guernsey (51 Barb. 99, 101, 102; affd.,50 N.Y. 669), "an arrest of a person within this State, by a private individual, without warrant, made for the purpose of forcibly abducting the arrested person from the State, and followed immediately by such abduction, cannot be justified. Such seizure and abduction, of themselves, constitute a criminal offense of high grade, both at common law, and by statute." We have not weakened this law of kidnapping by any change in the statute. It would be a sorry day for us, in my judgment, when people can seize a man in the public streets, lock him up and torture him, and plead as defense that they believed the law permitted them to do it. The law permits no such defense, or the plea of such a defense.

Second. The exceptions to the rulings of the judge excluding the evidence as to whether these defendants believed that they had authority to seize and imprison Wendel are harmless anyway, as both defendants testified as to the authority which young Parker told them they had, and the reasons given for not calling upon the New York police.

Third. Even if the law were different than I have stated it, we should not reverse for any of these rulings upon the plea that these men believed the law permitted them to seize Wendel, when both admit in their testimony before the grand jury that Wendel was taken to Schlossman's home, where Schlossman had prepared a stool or box posted in the cement upon which he and Weiss aided in fastening Wendel; that they saw him tied up with rope, and both participated in holding the straps while he was give the spread eagle, and kicked in the testicles; and both aided while he was pulled over backward by straps and tortured until he fainted. Such a case should not be reversed because these two men were not permitted to say that they believed they were aiding justice and obeying the law in committing such acts, all of which were part of the kidnapping.

For these reasons I am for affirmance of the conviction.

LEHMAN, LOUGHRAN and RIPPEY, JJ., concur with O'BRIEN, J.; CRANE, Ch. J., dissents in opinion, in which HUBBS and FINCH, JJ., concur.

Judgments reversed, etc.