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55 Cornell L. Rev. 527 (1969-1970)
Aspects of Merger in the Law of Kidnapping

handle is hein.journals/clqv55 and id is 541 raw text is: ASPECTS OF MERGER IN THE LAW OF KIDNAPPING Frank J. Parker, S.J.- And he that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death. Exodus, 21:16 Legal authorities have always seconded the above-quoted Penta- teuchal condemnation of kidnapping.1 Difficulty occurs, however, when a court must decide if kidnapping, with its attendant heavy punish- ment, has been committed in a particular case. The question whether a kidnapping offense should merge with, and thereby become extin- guished in, a murder, robbery, rape, or other felony has received two entirely different answers in the last few years. In New York felonious kidnapping was usually not found unless there was an attempt to collect ransom or reward. At the other extreme, California, and states following its lead, demonstrated little reluctance in punishing, even to the extent of the gas chamber, any violation of the kidnapping laws that exceeded the truly incidental. A statutory change in New York and a new interpretation of the California double punishment law have, in practice, decreased the polarization of viewpoints, but it would be wrong to conclude that the previously existing problems have been eliminated. A detailed examination of the old problems suggests that the current approach-one of legislative and judicial fiat-has not solved the problems and that they may well reoccur. t Lecturer, Boston College Graduate School of Social Work; Instructor, Boston Col- lege School of Management. B.S. 1962, Holy Cross College; J.D. 1965, Fordham Law School. 1 Kidnapping, a common law misdemeanor, was defined by Blackstone as the forcible abduction or stealing away of a man, woman, or child, from their own coun- try and sending them into another. W. BLACRSTONE, COMMENTARMS ON THE LAWS OF ENc- LAND 219 (8th ed. 1778). Early in the statutory development of the law, kidnapping was raised to a felony. Later, the requirement that the victim be carried out of the country was eliminated, and kidnapping came to be defined as the stealing and carrying away of any person. E. EAsT, PLEAS OF THE CROWN 429 (London ed. 1803). Kidnapping to obtain a reward or ransom is not dealt with in this article. Instead, emphasis will be placed upon those cases in which the act of kidnapping occurs (whether by design or not) in conjunction with the commission of a separate and distinct felony. Only the substantive aspects of the probleni are covered. As with many other crimes, sen- tencing practices in this area tend to be confusing, and a detailed coverage of sentencing would necessitate the introduction of concepts and considerations extraneous to the matter at hand.

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