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07/12/77 COMMONWEALTH v. GEORGE WARE

July 12, 1977

COMMONWEALTH
v.
GEORGE WARE



Suffolk. Indictment found and returned in the Superior Court on September 11, 1975. The case was tried before Roy, J.

Hale, C.j., Goodman, & Grant, JJ.

SYLLABUS BY THE COURT

Attempt. Kidnapping. Practice, Criminal, Charge to jury.

The opinion of the court was delivered by: Grant

Where, at the trial of an indictment for attempt to kidnap, the Judge's charge and further instructions, taken as a whole, did not make clear the requirement that the defendant must have intended to cause the victim to be secretly confined and imprisoned, it was reversible error for him to refuse the defendant's request for an instruction that proof of specific intent was required for conviction of the offense charged. [507-510]

The defendant has been convicted by a jury (1) on so much of an indictment for assault by means of a dangerous weapon as alleges a simple assault *fn1 and (2) on an indictment for attempt (G. L. c. 274, § 6 *fn2) to kidnap (G. L. c. 265, § 26, as appearing in St. 1971, c. 900 *fn3).

The defendant's liability (if any) under either indictment turned on whether the jury would believe the testimony of a young girl to the effect that she had been assaulted and grabbed on a sidewalk by one Lincoln, *fn4 who had then dragged her in the direction of a waiting automobile which had been driven to the scene by the defendant and in which he was then seated. The salient features of the girl's testimony are adverted to in the portions of the Judge's charge to the jury which have been reproduced in the appendix to this opinion. *fn5 The abduction (if one was intended) was frustrated by the arrival of a police cruiser and its occupants.

1. At the Conclusion of the evidence the defendant submitted a written request for an instruction that "the offenses charged in this case require proof of specific intent before the defendant can be convicted." The request was satisfied with respect to assault but explicitly denied with respect to kidnapping (see the parts of the charge prefaced by [3], [6] and [7]). That denial is the subject of one of the assignments of error which have been argued by the defendant.

One of the elements of the crime of attempt (G. L. c. 274, § 6; note 2, (supra) ) is an intention to commit a substantive crime. Commonwealth v. McLaughlin, 105 Mass. 460, 463 (1870). Commonwealth v. Cline, 213 Mass. 225, 225 (1913). Commonwealth v. Cooper, 264 Mass. 368, 371-372, 374 (1928). Perkins, , 573 (2d ed. 1969). One of the essential elements of the crime of kidnapping under the statute is the intention "to cause [the victim] to be secretly confined or imprisoned . . . against his will." G. L. c. 265, § 26 (note 3, (supra) ). Commonwealth v. Nickerson, 5 Allen 518, 528 (1863). *fn6 Accordingly, there can be no conviction on an indictment for attempt to kidnap unless the Commonwealth proves to the satisfaction of the trier of fact that the defendant had the intention to cause the victim to be secretly confined or imprisoned against his will. Such was the thrust of the defendant's request for an instruction, and the question for determination on this branch of the case is whether the charge was framed in such fashion that the jury could not reach the wrong Conclusion. Commonwealth v. Carson, 349 Mass. 430, 435 (1965).

The first and most obvious difficulty is that the Judge's only definition of kidnapping ("simply the seizing and confining of a person against his or her will"; [1] of the charge) omitted any reference to the requirement that the defendant must have intended to cause the alleged victim to be secretly confined or imprisoned. That definition was followed by a somewhat oblique definition of attempt to kidnap as "something affirmatively done toward the end of seizing and confining this young lady" ([2]); but whether the words "end of seizing and confining" were intended to refer to the defendant's immediate intention or to his ultimate objective is unclear, particularly in view of the use of the explicit words "intentional" (twice) and "intentionally" in the immediately ensuing definition of an assault and battery ([3]).

We do not think the multiple use of the word "plan" ([4] and [5]) contributes anything to the solution of the present question; read in context, that word was employed for the purpose of describing the elements of a common enterprise or joint venture rather than the requisite intent to confine or imprison. Indeed, in [5] the words "plan here to grab this young lady" were followed immediately by words which are susceptible to the interpretation that the requisite intent is unimportant, namely, "for whatever purpose you're not sure." The possibility that the Judge may actually have thought the "purpose" unimportant is suggested by his differing reactions to the defendant's further requests concerning specific intent ([7] "I won't give that") and common enterprise ([8] "I think I have sufficiently covered that").

We turn now to the further remarks made by the Judge in response to the jury's question whether they could properly convict the defendant of an attempt to kidnap if they were to reject the allegation of the indictment to the effect that a knife had been used in connection with the attempt. Here we find "successive and opposed sets of instructions" (Commonwealth v. Corcione, 364 Mass. 611, 616 [1974]). The Judge did tell the jury that they must be satisfied beyond a reasonable doubt that the "purpose" of grabbing the girl and attempting to pull her into the automobile was to "take her away against her will and without her consent" [(11)]. However, that advice must be evaluated in the light of (a) the preceding summary of the allegations of the indictment ([9]), which omitted any reference to the charge that the acts in question had been done "with intent to cause [the victim] to be forcibly and secretly confined and imprisoned," and (b) the renewed definition of kidnapping as "simply 'forcibly seizing and confining the victim'" ([10]). The jury demonstrated a Disposition to convict on the basis of the evidence they had heard and the instructions they had already received. If we assume that they listened to anything other than the answer to their particular question, they were necessarily faced with confusion on a crucial aspect of the case.

We conclude that the "impression left with the jury by the charge [and further instructions] as a whole" (Commonwealth v. Ramey, 368 Mass. 109, 114 [1975]) was erroneous and that the defendant should have a new trial on the indictment for attempt to kidnap.

2. We need not dwell on any of the defendant's arguments concerning the sufficiency of the charge on the subject of common enterprise or joint venture. See Commonwealth v. Benders, 361 Mass. 704, 707-708 (1972). It is not likely that the charge on this aspect of the case will be repeated verbatim at a new trial, and we think it enough for present purposes to note the possibility that the inadequate and conflicting instructions on intent to confine or imprison may have influenced the jury to conclude that the defendant was ...


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