People v. Fernandes

PLUMMER, J.

The defendants were convicted of simple assault, and also of the crime of kidnaping one Tiofolo Papito and carrying him from the county of Merced into the county of San Joaquin. From the judgment of conviction and the court’s denial of their motion for a new trial, the defendants appeal.

Upon this appeal no point is made as to the sufficiency of the testimony supporting the count charging assault, ■but reliance is based upon an alleged defect in the fifth count of the information filed against the defendants, charging the crime of kidnaping, in that it does not charge that the defendants intended or had any design to take the said Tiofolo Papito out. of the state of California.

So far as material here the count charging kidnaping is in the following words: “The said B. Fernandes, P. Dorian, C. Rondez and F. Rondez on or about the 8th day of May, nineteen hundred and thirty-two, at and in the said county of Merced, and State of California, and prior to the filing of this Information, did then and there unlawfully, wilfully, feloniously and forcibly, and without any lawful warrant or authority, steal, take, seize, kidnap and carry away one Tiofolo Papito, in the said County of Merced, and did then and there, from the said County of Merced, aforesaid, unlawfully, wilfully, feloniously and forcibly carry away and transport the said Tiofolo Papito into another county, to-wit, the County of San Joaquin, State of California, without having established a claim to the said Tiofolo Papito according to the laws of the United States, or the State of California.”

In making the contention that the information is insufficient to charge the offense of kidnaping, appellants rely upon section 207 of the Penal Code, and the case of

[47]

Ex parte Keil,

85 Cal. 309 [24 Pac. 742], The language of section 207,

supra,

shows clearly that the legislature intended to describe several offenses or several different acts which would constitute the offense of kidnaping, to wit: the forcible taking of a person from one county to another; also, from this state to another state, without having established authority, as provided by law. So far as applicable here the section reads: “Every person who forcibly steals, takes or arrests any person in this state and carries him into another country, state or county, or into another part of the same county, or who forcibly takes or arrests any person, with a design to take him out of this state without having established a claim according to the laws of the United States or of this state (etc.), is guilty of the crime of kidnapping.” The language is plain and direct that every person who forcibly steals, takes (etc.), any person in the state and carries him into another country, state or county, or into another part of the same county, without authority so to do, is guilty of kidnaping. There does not need to be any intent or design to carry the person kidnaped out of the state. If taken from one county to another the crime is complete.