{ "id": 8567835, "name": "STATE OF NORTH CAROLINA v. FRANK JACKSON GOUGH", "name_abbreviation": "State v. Gough", "decision_date": "1962-06-15", "docket_number": "", "first_page": "348", "last_page": "358", "citations": [ { "type": "official", "cite": "257 N.C. 348" } ], "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": "42 S.E. 2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625401 ], "opinion_index": 0, "case_paths": [ "/nc/227/0383-01" ] }, { "cite": "105 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 134", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610635, 8610540 ], "opinion_index": 0, "case_paths": [ "/nc/249/0134-02", "/nc/249/0134-01" ] }, { "cite": "74 S.E. 2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 197", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607322 ], "opinion_index": 0, "case_paths": [ "/nc/237/0197-01" ] }, { "cite": "90 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 177", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622662 ], "opinion_index": 0, "case_paths": [ "/nc/243/0177-01" ] }, { "cite": "34 N.W. 2d 716", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "227 Minn. 185", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 387907 ], "opinion_index": 0, "case_paths": [ "/minn/227/0185-01" ] }, { "cite": "183 S.E. 177", "category": "reporters:state_regional", "reporter": "S.E.", "pin_cites": [ { "page": "1936" } ], "opinion_index": 0 }, { "cite": "165 Va. 840", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 1963758 ], "opinion_index": 0, "case_paths": [ "/va/165/0840-01" ] }, { "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" ] }, { "cite": "4 Am. St. Rep. 444", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "16 N.E. 46", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "109 N.Y. 226", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 560584 ], "opinion_index": 0, "case_paths": [ "/ny/109/0226-01" ] }, { "cite": "8 N.H. 550", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 6756798 ], "opinion_index": 0, "case_paths": [ "/nh/8/0550-01" ] }, { "cite": "20 Ill. 315", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2595920 ], "opinion_index": 0, "case_paths": [ "/ill/20/0315-01" ] }, { "cite": "181 Kan. 375", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 25268 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/kan/181/0375-01" ] }, { "cite": "82 F. 2d 534", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 935163 ], "opinion_index": 0, "case_paths": [ "/f2d/82/0534-01" ] }, { "cite": "101 S.E. 24", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "178 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274125 ], "opinion_index": 0, "case_paths": [ "/nc/178/0730-01" ] }, { "cite": "95 S.E. 2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603113 ], "opinion_index": 0, "case_paths": [ "/nc/245/0047-01" ] }, { "cite": "37 S.E. 2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616286 ], "opinion_index": 0, "case_paths": [ "/nc/226/0211-01" ] }, { "cite": "175 S.E. 294", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "206 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632278 ], "opinion_index": 0, "case_paths": [ "/nc/206/0660-01" ] } ], "analysis": { "cardinality": 1026, "char_count": 26538, "ocr_confidence": 0.557, "pagerank": { "raw": 3.5192153561304597e-07, "percentile": 0.8837065404199241 }, "sha256": "4b5952c2890dfaa380704702e092017138c9544ff6faa2425d95be8e70517a66", "simhash": "1:94f9ed52fe017e09", "word_count": 4636 }, "last_updated": "2023-07-14T20:02:42.075591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bobbitt, J., concurs in result.", "Higgins, and RodmaN, JJ., dissent." ], "parties": [ "STATE OF NORTH CAROLINA v. FRANK JACKSON GOUGH." ], "opinions": [ { "text": "PARKER, J.\nThe State\u2019s evidence shows these facts:\nIn the spring of 1961 Elaine Saunders, a fifteen-year-old high school student, was living with her parents in Winston-Salem. When her school was ending, in an endeavor to obtain employment during the summer, she put an advertisement in the student ad page of the morning and afternoon papers for a baby-sitting job. It ran two or three weeks.\nAbout 7:30 p. m. o\u2019clock on 22 July 1961, Saturday, defendant called Elaine Saunders by telephone. He told her he had seen her advertisement in the paper, and wanted her to baby-sit with his two children, because his mother had a sprained ankle and couldn\u2019t get around. He said he was some kind of doctor, and wanted her to get a cab and come to the Professional Building where he was. She replied he would have to talk to her mother. He said he would call back in five or ten minutes. In a short time he telephoned again, and told Margaret Saunders, Elaine\u2019s mother, he was Dr. Watson, and wanted Elaine to baby-sit with his two girls, his mother had a sprained ankle, and he and his wife were going out. He further said he had some work to do at the office, and it would save time if Elaine came in a taxi to the Professional Building. She replied she would have to see him before she permitted her daughter to go out. He replied he would come to the home, and asked directions to get there.\nAbout 9:00 p. m. o\u2019clock on the same night he came to Elaine\u2019s home driving a 1960 beige colored Dodge. Elaine, her parents, her younger sister, and her uncle and aunt were there. He said he was going somewhere about Ardmore, he had wanted Elaine to stay until eleven o\u2019clock at night, but since it was so late he wanted her to stay until midnight, and he asked her mother if it was all right. The mother replied, Yes, and asked him would it be all right for Elaine\u2019s younger sister to go along. He answered, Yes.\nElaine and her sister got in the automobile with defendant. He drove to a drug store, went in, and came back with a package. He then drove to 2015 Elizabeth Avenue in Winston-Salem where he said he lived. He said he was tired of wearing a white shirt and tie, which doctors had to wear, and wanted to put on a red shirt. He left Elaine and her sister in his automobile, went into the house, and a few minutes later came out wearing a red shirt. When he drove off, he said he was going to Clemmons, North Carolina, where his mother and children were. He drove out on the East-West Expressway a considerable distance and turned off on a dirt road. He passed several houses on the dirt road, slowed his automobile down, and said to Elaine and her sister \u201cif we would be nice to him and co-operate with him we wouldn\u2019t get hurt, and he would pay us nice.\u201d Whereupon, Elaine and her sister jumped out of his automobile, and ran back up this dirt road about a mile to a house occupied by Mr. and Mrs. John Sparks in Davie County near Farmington. Sparks and his wife were asleep, and were awakened by these two girls knocking and saying, \u201cPlease help us.\u201d Sparks and his wife turned on the porch light and went out. The girls were hysterical \u2014 just scared to death; their legs were fairly muddy up to the knees. They told Mr. and Mrs. Sparks what had happened, and said, \u201cPlease take us to where mama is.\u201d While they were on the porch an automobile passed several times, and the girls yelled, \u201cThat is him,\u201d and looked like they wanted to run over Sparks and his wife to get in the house. Officers of Davie County brought the girls to Forsyth County. The Sparkses\u2019 home is about ten miles from Clem-mons, North Carolina, and about eight miles from Elaine Saunders\u2019 home in Forsyth County.\nLater that night defendant was arrested in an apartment at 2015 Elizabeth Avenue in Winston-Salem, which had on the door the name Frank Gough, and placed in the Forsyth County Jail, where he was identified by Elaine Saunders, her sister, and her mother. Defendant told the arresting officer he knew nothing about these two girls, saying, \u201cI have been home all afternoon and all evening.\u201d In front of the apartment, when defendant was arrested, was a beige colored 1960 Dodge automobile registered in the name of Frank and Carol Gough.\nDefendant\u2019s evidence shows: He works at Western Electric, where he is classified as a gyro-technician. On 22 July 1961 his wife was away from home. He was taking Elaine Saunders and her sister to his mother\u2019s house in Davie County. On the way he planned to go by his sister\u2019s house, and got on the wrong road. He slowed his automobile down, and was turning around, saying, \u201cI am on the wrong road,\u201d when all of a sudden the two girls jumped out and ran. He could tell they were frightened. He testified: \u201cI couldn\u2019t figure out why they were frightened.\u201d\nDefendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence. G.S. Id-173.\nOur present kidnapping statute, G.S. 14-39, which was enacted by the General Assembly at its 1933 Session as a result of the Lindbergh tragedy, reads in pertinent part:\n\u201cIt shall be unlawful for any person, firm or corporation, or any individual, male or female, or its or their agents, to kidnap or cause to be kidnapped any human being, or to demand a ransom of any person, firm or corporation, male or female, to be paid on account of kidnapping, or to hold any human being for ransom: Provided, however, that this section shall not apply to a father or mother for taking into their custody their own child.\u201d\nThis statute repeals C.S. 4221, S. v. Kelly, 206 N.C. 660, 175 S.E. 294, which was enacted by the General Assembly at its 1901 Session, and reads as follows:\n\u201cIf any person shall forcibly or fraudulently kidnap any person, he shall be guilty of a felony * * *.\u201d\nDefendant\u2019s counsel contend our 1933 Act, different from our 1901 Act, applies only to a forcible taking, because the word fraud, or fraudulently, or words of like import, were omitted from the 1933 Act, and that he cannot be guilty under our present Act of kidnapping, because the evidence fails to show that any force was used by defendant in taking Elaine Saunders away with him.\nIn S. v. Witherington, 226 N.C. 211, 37 S.E. 2d 497, the Court said in reference to G.S. 14-39:\n\u201cThe word \u2018kidnap,\u2019 as defined by Webster, means: \u2018To 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.\u2019 Moreover, in American Jurisprudence, the author, in treating of the subject, states that \u2018the 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.\u2019 31 Amer. Jur., 815. And in the S. v. Harrison case, supra, the court instructed the jury that \u2018by kidnapping is meant the taking and carrying away of a person forcibly or fraudulently.\u2019 However, reference to the record on appeal in that case discloses that the instruction as given was not the subject of an exception.\n\u201cIn the light of these definitions, we are of opinion that a finding that defendant 'did forcibly take and carry away\u2019 the person of Mary Simmons, without more, is insufficient to constitute the crime of kidnapping with which he is charged. The word 'forcibly' as so used means 'effected by force used against opposition or resistance,\u2019 or \u2018obtained by compulsion or violence,\u2019 that is, physical force. However, \u2018a taking and carrying away\u2019 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 which 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.\u201d\nIn S. v. Dorsett, 245 N.C. 47, 95 S.E. 2d 90, the Court repeated Webster\u2019s definition of kidnapping, and referred to the Witherington case.\nDefendant contends that the statement in the Witherington case in respect to our present kidnapping statute: \u201cHowever, \u2018a taking and carrying away\u2019 effected or obtained by fraud would constitute an element of the offense as completely as if effected or obtained by force\u201d is merely an obiter dictum, and what is more an erroneous obiter dictum. Defendant further contends that the Court\u2019s use of Webster\u2019s definition of kidnapping in the Witherington and Dorsett cases is not sound, because the statutes of different states vary, and some do include a fraudulent kidnapping and some not.\nThe common law definition of kidnapping has been somewhat differently stated by the early legal writers. Blackstone, Commentaries, Book 4, p. 219, defines kidnapping: \u201cBeing the forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another.\u201d 1 East, Pleas of the Crown, 429, 480, says: \u201cThe most aggravated species of false imprisonment is the stealing and carrying away, or secreting of any person, sometimes called kidnapping, which is an offense at common law, punishable by fine, imprisonment and pillory.\u201d Hawlcin\u2019s Pleas of the Crown, John Curwood, 8th Ed., Vol. I, p. 119, states: \u201cBut an aggravated species of false imprisonment is the privately carrying off any person, and keeping them secretly confined, which is generally understood by the term kidnapping.\u201d Bishop, Criminal Law, 9th Ed., Yol. 2, sec. 750, 2, page 573, states the better view as to the definition of kidnapping is that \u201ckidnapping is a false imprisonment aggravated by conveying the imprisoned person to some other place.\u201d Bishop, ibid, sec. 751, page 575, states: \u201cThe consent of a person of mature years and sane mind, on whom no fraud was practiced, would, of course, prevent an act otherwise wrongful from being kidnapping, but not so a young child.\u201d\nIt would seem that the better view as to the common law definition of kidnapping is that the use of physical force or violence is not always necessary to the commission of kidnapping, or certainly of child stealing, but that fraud may likewise be sufficient. S. v. Marks, 178 N.C. 730, 101 S.E. 24; Gooch v. U. S., 82 F. 2d 534; S. v. Brown, 181 Kan. 375, 312 P. 2d 832; Moody v. People, 20 Ill. 315; S. v. Rollins, 8 N.H. 550; People v. DeLeon, 109 N.Y. 226, 16 N.E. 46, 4 Am. St. Rep. 444; 1 Am. Jur. 2d, Abduction and Kidnapping, secs. 13 and 15; 51 C.J.S., Kidnapping, sec. 1 (4) and (5). See also S. v. Harrison, 145 N.C. 408, 59 S.E. 867.\nIn the Marks case, this Court quoted from 24 Cyc., 798, 799, as follows:\n\u201c \u2018To constitute the offense of kidnapping, it is not necessary that actual physical force should have been employed. It is essential only that the taking or detention should be against the will of the persons kidnapped. ... In determining whether the person was coerced by fraud and inveiglement, the nature of the artifice employed and the age and education and condition of mind must be taken into consideration. The offense is not committed if the person taken away or detained, being capable in law of consenting, goes voluntarily without objection in the absence of fraud and deception, but a child of tender years is regarded as incapable of consenting.\u2019 24 Cyc., 798, 799.\u201d\nThis quotation from Cyc. is not entirely verbatim, and omits a few words. The exact language used by Cyc. is:\n\u201cTo constitute the offense of kidnapping it is not necessary that actual physical force or violence should have been employed, and this was true even at common law. It is essential only that the taking or detention should be against the will of the person kidnapped. Falsely exciting the fears of the person who is the subject of the offense by threats, or enticement or inveiglement by false and fraudulent representations amounting substantially to a coercion of the will is sufficient. In determining whether the person was coerced by fraud and inveiglement, the nature of the artifice employed and the age, education, and condition of mind must be taken into consideration. The offense is not committed if the person taken away or detained, being capable in law of consenting, goes voluntarily without objection in the absence of fraud and deception. But a child of tender years is regarded as incapable of consenting.\u201d\nIn the Gooch case the Court said:\n\u201cWhile kidnapping at common law means to forcibly abduct a person and to carry him from one state into another state, it involves the element of seizing the victim by force or fraud and against his will.\u201d\nIn the Brown case the Court stated:\n\u201cThe word \u2018kidnap\u2019 has a technical meaning. It is derived from the common law, and must be interpreted in the light of its technical meaning in common law. Both under the common law and under a statute, unless clearly modified, it means to take and carry away any person by unlawful force or by fraud, and against his will.\u201d\nIn the Moody case the Court said:\n\u201cThe statute defines kidnapping to be the forcible abduction or stealing away of a man, woman or child from his or her own country, and sending or taking him or her into another. While the letter of the statute requires the employment of force to complete this crime, it will undoubtedly be admitted by all that physical force and violence is not necessary to its completion. Such a literal construction would render this statutory provision entirely useless. The crime is more frequently committed by threats and menaces than by the employment of actual physical force and violence. If the crime may be committed without actual violence, by menaces, it would seem that any threats, fraud, or appeal to the fears of the individual, which subjects the will of the person abducted, and places such person as fully under the control of the other, as if actual force were employed, would make the offense as complete as by the use of force and violence.\u201d\nIn Kent v. Commonwealth, 165 Va. 840, 183 S.E. 177, 1936, the defendant was indicted, tried and convicted under section 4407 of the Code of Virginia, as amended by Acts 1934, Ch. 338, for the kidnapping of one Mary J. Hastings, and sentenced to imprisonment for thirteen years.\nSection 4407, as amended, of the Code of Virginia, which appears in the same words in Code of Virginia, 1950, Vol. 4, Title 18, Article 3, sec. 43, p. 140, reads as follows:\n\u201cKidnapping, or threatening or attempting to kidnap, with intent to extort money; how punished. \u2014 If any person seize, take or secrete any other person with intent to extort money, or pecuniary benefit, he shall be punished with death, or within the discretion of the jury be confined in the penitentiary not less than eight nor more than twenty years. If any person threaten, or attempt, to seize, take or secrete any other person with intent to extort money, or pecuniary benefit, he shall be punished by * * .\u201d\nAccording to the opinion the evidence shows: Mrs. Hastings was pressing the defendant for the payment of money he owed her, and she was induced to accompany him to Washington on the occasion referred to upon the assurance that if she would do so he would obtain the money from a relative living there and pay her. Defendant expected to obtain the possession of Blue Ridge Springs and otherwise benefit financially if he could get Mrs. Hastings out of the way. On the night of Sunday, 24 August 1934, defendant left Blue Ridge Springs, Va., in his automobile, for Washington, D. C., taking Mrs. Hastings with him. On the morning of Wednesday, 27 August 1934, the body of Mrs. Hastings was found lying on the side of the highway near Stroudsburg, Penn. She had been shot through the head with a pistol, and had been dead several days.\nDefendant\u2019s counsel contended, as here, that he cannot be convicted under the statute because the evidence fails to show that any force or restraint was used by defendant in taking Mrs. Hastings with him. Defendant\u2019s counsel further contended the evidence fails to show there was any intent on defendant\u2019s part to extort money or pecuniary benefit.\nThe Court in a per curiam, opinion in affirming the judgment below said:\n\u201cAfter careful consideration of the record, we think the evidence shows that the accused took Mrs. Hastings with him under such circumstances as amount to fraud and coercion on his part, and for the purpose of pecuniary benefit, and the same is therefore sufficient to sustain a conviction under the statute.\u201d\nIt would seem from the evidence stated in the opinion, and from the contention of defendant\u2019s counsel, that there was no forcible taking, although the opinion states that: \u201cWe think the evidence shows that the accused took Mrs. Hastings with him under such circumstances as amount to fraud and coercion on his part.\u201d However that may be, it would appear that the Virginia Court considered that the false and fraudulent representations of defendant amounted substantially to a coercion of the will of Mrs. Hastings, and that the consent of Mrs. Hastings having been obtained by the fraud of defendant is, in truth, no consent at all.\nFrom our investigation it appears that all of our states have enacted statutes in respect to the offense of kidnapping. There is such a variance in the language of these statutes, enlarging the common law concept of the crime, and especially in not making its existence dependent on any interstate, or taking out of the country, element, that it seems impossible to give a generally valid definition of kidnapping which would apply to all the states. \u201cHowever, it may be said as a general proposition that * * the gravamen of kidnapping is the taking or detention of a person against his will and without lawful authority. In other words, it is an unlawful interference with the freedom of the person kidnapped.\u201d 1 Am. Jur. 2d, Abduction and Kidnapping, sec. 2. See also ibid, sec. 11.\nThe elements of the crime of kidnapping are necessarily dependent on the wording of the statute in the particular state, and authority cited from the states must be read in connection with the statute of the particular state. S. v. Croatt, 227 Minn. 185, 34 N.W. 2d 716.\nUnder our present kidnapping statute, G.S. 14-39, a person is guilty of kidnapping (1) if he kidnaps or causes to be kidnapped any human being, or (2) if he demands a ransom of any person, firm or corporation, male or female, to be paid on account of kidnapping, or (3) if he holds any human being for ransom. There is a proviso in the statute not applicable here.\nAccording to the authorities we have cited, the crime of kidnapping by its very nature cannot ordinarily be committed by an act to which a person, being capable in law of consenting, consents in a legally valid manner. But where false and fraudulent representations or fraud amounting substantially to a coercion of the will of the kidnapped person are used as a substitute for force in effecting kidnapping, there is, in truth and in law, no consent at all on the part of the victim. In brief, under those circumstances the law has long considered fraud and violence as the same in the kidnapping of a person.\nConsidering the commonly accepted meaning of the word \u201ckidnap,\u201d and its special legal meaning, and considering the object of our statute, and the manifest meaning of the law-making body to secure the personal liberty of the citizen, and the language used in our cases above quoted, it is our opinion, and we so hold, that the word \u201ckidnap\u201d as used in G.S. 14-39 means the unlawful taking and carrying away of a person by force or fraud and against his will, or the unlawful seizure and detention of a person by force or fraud and against his will. The expression used in S. v. Witherington, supra, quoted above, may be an obiter dictum as contended by defendant, but it is a correct statement of law in this jurisdiction in respect to the meaning of the word \u201ckidnap\u201d as used in G.S. 14-39, and this is true even though G.S. 14-39 omits the words \u201cforcibly or fraudulently\u201d used in C.S. 4221. To construe the word \u201ckidnap\u201d as used in G.S. 14-39 as applying only to a forcible taking, as contended by defendant, is too narrow a construction, and in many instances would make G.S. 14-39 practically useless.\nIn the present case there was no actual confinement or detention of Elaine Saunders, nor any actual force used by defendant. She consented to go with defendant in his automobile, and baby-sit, as defendant said, with his two girls because his mother had a sprained ankle and couldn\u2019t get around, and voluntarily left her home with him in his automobile for that lawful and innocent purpose. But the evidence for the State permits the legitimate inference that she did not consent to go with him in his automobile out on a dirt road in another county for some other purpose, and that she would not have gone with him at all, except for his false representations and fraud in saying that he wanted her to go and baby-sit for his two girls, which representations were untrue in fact, and defendant knew them to be untrue when he made them, that such representations were reasonably calculated to deceive Elaine Saunders taking into consideration the nature of the representations, and her age and education, that such representations were made by defendant with intent to deceive her so that he could carry her off in his automobile for some indecent or immoral purpose, and did in fact deceive her and cause her to leave with him. And further, the evidence for the State permits the reasonable inference that the false representations and fraud of defendant amounted substantially to a coercion of the will of Elaine Saunders, and that the consent of Elaine Saunders to leave her home in defendant\u2019s automobile having been obtained by the false representations and fraud of defendant was, in truth, no consent at all, and that her leaving her home with defendant was in fact against her will. The evidence for the State, considered in the light most favorable to it, S. v. Kelly, 243 N.C. 177, 90 S.E. 2d 241, is sufficient to carry the case to the jury on the charge in the indictment, and the trial judge was correct in denying defendant\u2019s motion for judgment of nonsuit made at the close of all the evidence.\nDefendant assigns as error parts of the charge on the ground that the trial court instructed the jury that the \u201ctaking and carrying away a human being by fraud constitutes the offense of kidnapping.\u201d His argument in his brief on these assignments of error is incorporated in, and is the same as, his argument in his brief that the court erred in denying his motion for judgment of nonsuit. The parts of the charge assailed by these assignments of error are in substantial, if not in exact, compliance with the law in respect to kidnapping effected by fraud, as we have stated it above, and are overruled.\nDefendant also assigns as error that the court in its charge limited the jury to returning one of two verdicts: Guilty as charged in the indictment, or Not Guilty. Defendant contends that the court should have instructed the jury that they could return one of three verdicts: Guilty as charged in the indictment, or Guilty of an assault on a female, or Not Guilty.\nThere is no evidence here of threatening words or violence menaced, nor is there any overt act or an attempt, with force and violence, to do physical injury to Elaine Saunders. This Court said in S. v. Ingram, 237 N.C. 197, 74 S.E. 2d 532:\n\u201cSo that it seems well settled that in order to constitute the criminal offense of assault there must be an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another.\u201d\nThere is no evidence in the case tending to show that defendant committed an assault on Elaine Saunders, and, therefore, the court properly did not instruct the jury that they could return a verdict of Guilty of an assault on a female, but correctly instructed them that they could return one of two verdicts, as set forth above. S. v. Jones, 249 N.C. 134, 105 S.E. 2d 513; S. v. Brown, 227 N.C. 383, 42 S.E. 2d 402.\nThe only other assignment of error is to the judgment, which is overruled.\nIn the trial below we find\nNo error.\nBobbitt, J., concurs in result.\nHiggins, and RodmaN, JJ., dissent.", "type": "majority", "author": "PARKER, J." } ], "attorneys": [ "Attorney General T. W. Bruton and Assistant Attorney General Ralph Moody for the State.", "Robert M. Bryant and Deal, Hutchins \u2022& Minor by Roy L. Deal for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FRANK JACKSON GOUGH.\n(Filed 15 June 1962.)\n1. Kidnapping \u00a7 1\u2014\nThe word \u201ckidnap\u201d as used in G.S. 14-39 means the unlawful taking and carrying away of a person by force or fraud and against his will, or the unlawful seizure and detention of a person by force or fraud and against his will, and therefore the contention that the statute, since it repeals C.S. 4221, and omits the word \u201cfraud\u201d or \u201cfraudulently,\u201d or words of similar import, does not embrace an unlawful detention or carrying away of a person against his will by fraud, is untenable.\n3. Same\u2014\nEvidence that defendant induced a young girl to gO' with him in his car by means of false representations that he wished her to baby-sit with his two children, and that such representations were made by defendant falsely, knowingly, and with intent to deceive the young girl SO' he could carry her off in his automobile for some immoral purpose, is held sufficient to be submitted to the jury in this prosecution for violation of G.S. 14-39, since her consent, having been obtained by false representations and fraud, was no consent in law, so that the asportation was in fact against her will.\n3. Same\u2014\nWhere, in a prosecution under G.S. 14-39, the evidence tends to show that defendant kidnapped prosecutrix by fraud, but there is no evidence that he used threatening words or violence or any overt act or an attempt, with force and violence, to do injury to prosecutrix, there is no evidence of assault upon a female, and therefore the court correctly refrains from submitting the question of defendant\u2019s guilt of assault upon a female, and correctly confines the jury to a verdict of guilty or not guilty of the offense charged.\nBobbitt, J., concurs in result.\nHiggins, and Rodman, JJ., dissent.\nAppeal by defendant from Armstrong, J., 9 October 1961 Term of Forsyth.\nProsecution for kidnapping.\nThe indictment charges that the defendant on 22 July 1961, \u201cunlawfully, willfully, feloniously and fraudulently did kidnap Elaine Saunders, a human being.\u201d\nPlea: Not Guilty. Verdict: Guilty as charged.\nFrom a judgment of imprisonment, defendant appeals.\nAttorney General T. W. Bruton and Assistant Attorney General Ralph Moody for the State.\nRobert M. Bryant and Deal, Hutchins \u2022& Minor by Roy L. Deal for defendant appellant." }, "file_name": "0348-01", "first_page_order": 388, "last_page_order": 398 }