{
  "id": 8616286,
  "name": "STATE v. LLOYD WITHERINGTON",
  "name_abbreviation": "State v. Witherington",
  "decision_date": "1946-03-20",
  "docket_number": "",
  "first_page": "211",
  "last_page": "213",
  "citations": [
    {
      "type": "official",
      "cite": "226 N.C. 211"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "59 S. E., 867",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "145 N. C., 408",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11253535
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/145/0408-01"
      ]
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  "last_updated": "2023-07-14T21:52:42.041183+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Seawell, J., dissents."
    ],
    "parties": [
      "STATE v. LLOYD WITHERINGTON."
    ],
    "opinions": [
      {
        "text": "WiNBORNE, J.\nAmong the assignments of error brought forward by defendant on this appeal is that directed to the following portion of the charge given by the court to the jury: \u201cIf the State has satisfied you beyond a reasonable doubt from the evidence that the defendant on the day in question, to wit, the third day of March, 1945, did forcibly take and carry away the person of the prosecuting witness, Mary Simmons, from her home some distance from her home, it would be your duty to return a verdict of guilty of kidnapping as charged in the bill of indictment.\u201d We think the exception to this charge is well taken in that the definition of the offense, as given, is not complete.\nThe statute relating to kidnapping, G. S., 14-39, provides, in pertinent part, that \u201cit shall be unlawful for any person ... to kidnap . . . any human being . . .\u201d Thus it appears that the General Assembly in taking cognizance of the offense, has not undertaken to define the word \u201ckidnap\u201d nor to give it expressly its technical common law meaning. In fact, this Court in the case of S. v. Harrison, 145 N. C., 408, 59 S. E., 867, declined to hold as erroneous the refusal of a request for instruction in which it was sought to give to the word \u201ckidnap,\u201d as used in the statute, a technical meaning as at common law.\nThe word \u201ckidnap,\u201d as defined by Webster, means: \u201cTo carry (anyone) away by unlawful force or by fraud, and against his will, or to seize and detain him for the purpose of so carrying him away.\u201d Moreover, in American Jurisprudence, the author, in treating of the subject, states that \u201cthe generally accepted basic element of the crime of kidnapping is the taking or detaining of a person against' his will and without any lawful authority.\u201d 31 Amer. Jur., 815. And in the S. v. Harrison case, supra, the court instructed the jury that \u201cby kidnapping is meant the taking and carrying away of a person forcibly or fraudulently.\u201d However, reference\u2019 to the record on appeal in that case discloses that the instruction as given was not the subject of an exception.\nIn the light of these definitions, we are of opinion that a finding that defendant \u201cdid forcibly take and carry away\u201d the person of Mary Simmons, without more, is insufficient to constitute the crime of kidnapping with which he is charged. The word \u201cforcibly\u201d as so used means \u201ceffected by force used against opposition or resistance,\u201d or \u201cobtained by compulsion or violence,\u201d that is, physical force. However, \u201ca taking and carrying away\u201d effected or obtained by fraud would constitute an element of the offense as completely as if effected or obtained by force. But regardless of the means used, by wbicb the taking and carrying away is effected, there must be further finding that the taking and carrying away was unlawful or done without lawful authority, or effected by fraud.\nIt is fair to the learned judge, who tried this case, to say that in the first part of his charge he gave the definition of \u201ckidnapping\u201d which was used by the trial judge in S. v. Harrison, supra, as hereinabove quoted. But the portion to which exception is here taken is the last instruction, or parting word, given to the jury, and the only one in which the definition was applied to the facts. And in doing so the judge was probably influenced by the phraseology of the definition as used in the Harrison case, supra.\nSince there must be a new trial, other exceptions are not considered as the matters to which they relate may not recur on another trial.\nLet there be a\nNew trial.\nSeawell, J., dissents.",
        "type": "majority",
        "author": "WiNBORNE, J."
      }
    ],
    "attorneys": [
      "Attorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and TucJcer for the State.",
      "George R. Britt and J. Faison Thomson for defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE v. LLOYD WITHERINGTON.\n(Filed 20 March, 1946.)\nKidnapping \u00a7\u00a7 1, 2\u2014\nKidnapping is the taking and carrying away of a human being by physical force or by fraud, done unlawfully or without lawful authority, and a charge defining the offense as forcibly taking and carrying away of a human being is held, for error as being incomplete. G. S., 14-39.\nSea well, J., dissents.\nAppeal by defendant from Carr, J., at November Term, 1945, of WayNe.\nCriminal prosecution upon indictment charging that defendant \u201cunlawfully, willfully and feloniously did forcibly kidnap and carry away Mary Simmons against the form of the statute in such case,\u201d etc.\nYerdict: Guilty as charged in the bill of indictment.\nJudgment: Confinement in tbe county jail for a term of two years assigned to work the roads under the supervision of the State Highway and Public Works Commission.\nDefendant appeals therefrom to Supreme Court and assigns error.\nAttorney-General McMullan and Assistant Attorneys-General Rhodes, Moody, and TucJcer for the State.\nGeorge R. Britt and J. Faison Thomson for defendant, appellant."
  },
  "file_name": "0211-01",
  "first_page_order": 259,
  "last_page_order": 261
}