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COMMONWEALTH v. RUSSELL (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
RUSSELL, APPELLANT



Appeal from order of Court of Common Pleas of Erie County, Nos. 1672 and 1673 of 1971, in case of Commonwealth of Pennsylvania v. James P. Russell.

COUNSEL

William T. Jorden and McClure, Dart, Miller and Kelleher, for appellant.

Robert H. Chase, Assistant District Attorney, and R. Gordon Kennedy, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 225 Pa. Super. Page 134]

This is an appeal from a conviction of kidnapping for extortion.

Appellant's first contention is that the evidence was insufficient.

Section 723 of The Penal Code, Act of June 24, 1939, P. L. 872, 18 P.S. § 4723, provides: "Whoever takes, or carries away, or decoys or entices away, or secretes any person, with intent to extort money . . . for the restoration or return of such person, is guilty of a felony . . . ."

[ 225 Pa. Super. Page 135]

The testimony was as follows: On July 23, 1971, two associates of appellant went to the home of Joseph Kaulis and at gunpoint bound his wife and son and forced them to lie on the floor. They called Kaulis at work, told him that they had his wife and son, and directed him to take all the money from the safe in his store to a church. They were arrested when they attempted to pick up the money, Mrs. Kaulis having freed herself to call the police. One of them, Richard Mallory, was granted immunity under the Act of November 22, 1968, P. L. 1080, 19 P.S. § 640.1 et seq., and he implicated appellant as the mastermind behind the scheme.

Appellant contends that the evidence was insufficient because in his view Section 723 of The Penal Code, supra, 18 P.S. § 4723, requires an asportation of the victim.

"Some modern statutes define kidnapping so as to absorb the crime of false imprisonment and tend to obliterate the distinction between the two offenses; others adopt the basic concept that there must be a carrying away of a person from the place where he was seized to some other place." 1 Am. Jur. 2d Abduction & Kidnapping § 1, p. 160. See Note, A Rationale of the Law of Kidnapping, 53 Colum. L. Rev. 540 (1953); I Wharton Criminal Law & Procedure Ch. 15, § 371 (1957).

Section 723 of The Penal Code forbids four specified types of conduct: "Whoever [1] takes, or [2] carries away, or [3] decoys or entices away, or [4] secretes any person . . .", is guilty of kidnapping for extortion. Since the victims in the present case were not carried or enticed from their home, a conviction must stand upon [1] or [4]. Whether [4] implies movement need not be decided, for to bind a victim at gunpoint is a ...


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