Appeal from District Court of the United States for the District of New Jersey; William Clark, Judge.
Before BIGGS, MARIS, and BUFFINGTON, Circuit Judges.
This is an appeal by Ellis H. Parker and Ellis H. Parker, Jr., from judgments of conviction entered in the District Court for the District of New Jersey upon verdicts of guilty after a trial of a criminal prosecution.
The appellants were indicted together with Murray Bleefield, Harry Weiss and Martin Schlossman for having conspired to kidnap one Paul H. Wendel and transport him in interstate commerce. The indictment alleged that the conspiracy was entered into in Burlington County, New Jersey, and that its purpose was to kidnap Wendel in the Borough of Manhattan, City and State of New York, and unlawfully carry and hold him for ransom, reward and otherwise in the Borough of Brooklyn, City and State of New York, and in the County of Burlington, New Jersey, and while so holding him to unlawfully and knowingly transport him from the Borough of Brooklyn into the State of New Jersey. It was further averred that the purpose of the defendants was to induce Wendel to confess to the kidnapping of Charles A. Lindbergh, Jr., and to submit the confession so obtained to the New Jersey Court of Pardons in connection with the application then pending before it of Bruno Richard Hauptmann who had previously been convicted of the murder of the Lindbergh child.
483 assignments of error have been filed covering substantially every phase of the trial and of the proceedings preliminary thereto. It would be impracticable to discuss each of these individually. Fortunately they resolve themselves according to subject matter into a comparatively small number of groups. We will accordingly proceed to consider separately the question involved in each group.
The appellants first filed a plea in abatement which was overruled by the court below. The plea was based upon three grounds, the first being that the grand jury which found the indictment was not properly drawn. It is unnecessary to consider this point, however, since it was not averred that the appellants were prejudiced by the alleged irregularities in drawing the grand jury. The plea, insofar as it was based on this ground, was, therefore, properly denied. Agnew v. United States, 165 U.S. 36, 17 S. Ct. 235, 41 L. Ed. 624; Brookman v. United States, 8 Cir., 8 F.2d 803.
The second reason put forth in support of the abatement plea was that the term of the grand jury had expired before the indictment was found. The grand jury was drawn for the April Term, 1936. The indictment was filed on October 19, 1936 in the succeeding September Term. Section 284 of the Judicial Code, 28 U.S.C. § 421, 28 U.S.C.A. § 421, empowers the district judge by order to authorize any grand jury to continue to sit during the term succeeding the term at which such request is made, solely to finish investigations begun but not finished by such grand jury. Judge Clark in the court below on August 17, 1936, which was within the April Term, entered an order directing the grand jury to remain in service until the further order of the court. The vote upon the indictment here involved had been taken by the grand jury on August 7th, although the bill was not brought into court until October 19th. In the light of the statute and of the court's order its action in thus completing its business in the succeeding term was entirely lawful. Elwell v. United States, 7 Cir., 275 F. 775.
Finally the appellants urged in support of their plea in abatement that there was no proper indictment in the case because of the failure of the foreman of the grand jury to keep a record of the number of grand jurors concurring in the finding of the indictment and to file it with the clerk of the court when the indictment was returned, as required by Section 2 of the Act of April 30, 1934, 18 U.S.C. § 554a, 18 U.S.C.A. § 554a. This act, however relates only to pleas to abate or motions to quash an indictment on the ground that one or more unqualified persons served upon the grand jury which found it. Consequently the failure of the foreman to comply with its provisions becomes material only if a plea in abatement is filed upon that ground. No such plea was made in this case. In its absence we think that the failure of the foreman of the grand jury to keep and file the record required by the statute should not invalidate an indictment otherwise entirely valid. It follows that the plea in abatement was properly overruled.
The appellants next demurred to the indictment. Their demurrer was overruled by the court below in an able and comprehensive opinion. 19 F.Supp. 450. The indictment charged a violation of Section 3 of the Federal Kidnapping Act, as amended, 18 U.S.C. § 408c, 18 U.S.C.A. § 408c. The pertinent provisions of the act are as follows:
" § 408a. Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, except, in the case of a minor, by a parent thereof, shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnaped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be inposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine: Provided, That the failure to release such person within seven days after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnaped, abducted, or carried away shall create a presumption that such person has been transported in interstate or foreign commerce, but such presumption shall not be conclusive."
" § 408c. If two or more persons enter into an agreement, confederation, or conspiracy to violate the provisions of sections 408a and 408b of this title, and do any overt act toward carrying out such unlawful agreement, confederation, or conspiracy, such person or persons shall be punished in like manner as provided for by said sections."
The appellants urge that their demurrer should have been sustained since the indictment fails to allege facts sufficient to show that they entered into a conspiracy and fails to set out the purpose of the alleged conspiracy. An examination of the indictment satisfies us that its averments were sufficient in these respects. The defendants further urge that it does not appear from the indictment that Wendel was held for "ransom, reward or otherwise." It is true that there was no averment of holding for ransom or pecuniary reward. It was, however, alleged that through the confession to be obtained from Wendel the appellants planned to publish the purported true story of the kidnapping and death of the Lindbergh child and thereby enhance the reputation of Ellis H. Parker as a successful and competent detective, whereby his services would come to be in great demand. We think that this was sufficient. The statute prohibits the interstate transportation of persons kidnapped for other reasons than ransom or reward. It is not restricted to cases involving pecuniary benefit to the kidnappers. Gooch v. United States, 297 U.S. 124, 56 S. Ct. 395, 80 L. Ed. 522. We think that Congress by the phrase "or otherwise" intended to include any object of a kidnapping which the perpetrator might consider of sufficient benefit to himself to induce him to undertake it.
The appellants further urge that the overt acts alleged in the indictment were insufficient to sustain it. The sixth overt act alleged was that on or about February 24, 1936 Bleefield and Weiss did knowingly and unlawfully carry and convey Wendel by motor car operated by them in interstate commerce from the Borough of Brooklyn in the City and State of New York to Mr. Holly in the County of Burlington, New Jersey, and there deliver him into the custody of Ellis H. Parker. This was clearly a sufficient averment of an overt act and it sustains the indictment. We think that the other acts averred were likewise sufficient.
The appellants next moved under Section 40 of the Judicial Code, 28 U.S.C. § 101, 28 U.S.C.A. § 101, to have the trial held in Burlington County, New Jersey, where the offense was alleged to have been committed. That section provides that "the trial of offenses punishable with death shall be had in the county where the offense was committed, where that can be done without great inconvenience." The Government opposed the application upon the ground that the prosecution would be greatly inconvenienced if the trial were held in Burlington County rather than at Newark where it had been moved, since a great majority of the Government witnesses would be in the vicinity of the latter place. The court below refused the application, 19 F.Supp. 450, 455, holding that the change of venue applied for would result in great inconvenience to the Government. The application was addressed to the sound discretion of the court. Davis v. United States, 9 Cir., 32 F.2d 860; Barrett v. United States, 7 Cir., 82 F.2d 528. After carefully considering the record we are satisfied that its discretion was not abused. Obviously the inconvenience referred to in the statute is that of the Governemnt since the appellants could hardly complain of being tried at the place where their offense was committed.
Aside from this, however, we are satisfied that Section 40 of the Judicial Code had no application for the reason that the offense with which these appellants were charged was not punishable with death. It will be seen from the provisions of the Federal Kidnapping Act which we have quoted that punishment by death may not be imposed under the act if prior to its imposition the kidnapped person has been liberated unharmed. We agree with the court below that the act, reasonably interpreted in the light of its purpose, refers to the condition of the kidnapped person at the time of his release. It bans the death penalty if the kidnappers release him sound and unharmed even though he may have received injuries during his captivity from which he has recovered. Any other construction would, it seems to us, tend to encourage the murder of the victim by the kidnappers if in the course of the kidnapping he had been injured. Congress must have preferred, as the court below aptly said (19 F.Supp. 450, 456), "a cured and live victim to a dead or permanently injured one, even if the kidnappers must refrain from liberating until the cure is accomplished."
In the present case the indictment while charging beating and torture of Wendel did not aver any continuing or permanent injury to him nor was it alleged either that he was still in the custody of the kidnappers or that he had been liberated by them in a harmed condition. Whether such averments were necessary to support a demand for the imposition of the death penalty we need not decide, since the evidence taken at the trial established that he was liberated by the appellants in a sound and unharmed condition. The case was, therefore, not one in which the death penalty could ...