Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; John P. Barnes, Judge.
Before MAJOR and TREANOR, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from a judgment entered March 19, 1938, upon defendant's plea of guilty, sentencing him to death upon the recommendation of a jury called by the court to determine whether defendant should suffer such penalty.
The indictment charged the defendant with kidnaping for ransom, Charles S. Ross, and transporting him in interstate commerce over land by means of an automobile in violation of Section 408a, Title 18, U.S.C.A.*fn1
The transportation alleged was from Franklin Park, Illinois, to Emily, Minnesota, and from Emily, Minnesota, to Spooner, Wisconsin, at which latter place, on, towit: October 10, 1937, Charles S. Ross was killed by defendant. The second count alleged that defendant was aided and assisted in transporting Ross by James Atwood Gray.
On September 25, 1937, Charles S. Ross, in company with Miss Florence Freihage, his private secretary, was traveling by auto toward Chicago via State Highway 64, when, at the intersection of Wolf Road, the defendant approached the automobile, robbed Florence Freihage, seized Charles S. Ross and forced him to enter defendant's automobile. James Atwood Gray accompanied the defendant, and together they transported Ross to Emily, Minnesota, near where they held him a captive.
Negotiations were shortly instituted between defendant and representatives of Mrs. Ross, the wife of Charles S. Ross, concerning a ransom which was demanded by the defendant for the release of Ross. Such negotiations culminated in an agreement by which defendant was to receive $50,000 in currency. Following defendant's suggestions as to the manner, time and place, the ransom money on October 8, 1937, was delivered by a representative of Mrs. Ross at a point on the highway near Rockford, Illinois, where it was received by the defendant. The money thus paid as ransom was taken by the defendant to Emily, Minnesota, and the following day, defendant, Gray, and Ross went by automobile from Emily, Minnesota to a point approximately seventeen miles north of Spooner, Wisconsin. There accompanied the ransom money, a letter of instructions. According to defendant's version, this letter was lost and he and Gray were in doubt as to the manner in which the release of Ross should be effected. It was testified by the defendant that they were willing to release Ross any time and place satisfactory to him, provided it was at some point where he could not call the police. It was also testified by the defendant that he and Gray had stored gasoline in a dugout in the vicinity of Spooner, Wisconsin, where they went to obtain sufficient gasoline to make a trip to Lake Geneva, where Ross was to be released; that a controversy arose between defendant and Gray near the opening of the dugout; that Gray struck defendant with the butt of a gun; that defendant grabbed the revolver and that during the struggle, defendant shot Gray in the chest and that all three of them fell into the hole, where the struggle continued. It was defendant's version that Ross received an injury to his head as he fell on the floor of the dugout. Both Gray and Ross were severely injured, and after deciding that both were unconscious, if not dead, and to end their suffering and avoid the possibility that they might be left to die in agony, defendant shot both Gray and Ross. Their bodies were left in the dugout, the lid of which was covered with dirt.
Defendant buried in the ground near Walker, Minnesota, $32,645 of the ransom money, and retained the balance in his possession. He then traveled by automobile to various parts of the country. In January, 1938, he was arrested at the Santa Anita Race Track, Los Angeles, California. In the hotel room occupied by him, a large sum of the ransom money was found, as well as $900 in a pocketbook carried on his person. The money buried by the defendant at Walker, Minnesota, together with that found in his room and upon his person was identified as that delivered to him October 8, 1937, on the highway near Rockford, Illinois.
After defendant's arrest, he made a written confession, relating the story of his activities in the seizing, transporting and holding of Ross. Subsequently, in company with Government agents, he pointed out the place where Ross was held while the ransom negotiations were in progress, and also where the money was buried near Walker, Minnesota. He also divulged to officers, the dugout which contained the bodies of Ross and Gray. A post mortuam examination revealed that Ross had two fractures of the skull which almost completely encircled his head, several fractures of the ribs and a wound where a bullet had entered the head at a point approximately back of the ear.
The errors assigned arise out of the defendant's contention that the statute in question is unconstitutional; that in view of defendant's plea of guilty, the court, not the jury, should have passed upon the question of punishment; that the indictment should have been quashed; that the grand jury and petit jury were improperly summoned; that the petit jury were improperly selected; that the court erred in certain rulings on evidence; that defendant's motion for new trial and defendant's motion in arrest of judgment should have been granted.
Counsel for defendant urge upon us with an earnestness which cannot be doubted that Congress, in enacting the statute in question, acted beyond its authority and that the same is therefore unconstitutional. It must be conceded, we think, that if the authority exists for such legislation, it must be by reason of the Commerce Clause of the Constitution. U.S.C.A. Const. § 1, § 8, cl. 3. The extent which Congress is authorized to legislate under this clause has been a continual source of controversy almost from the beginning of the republic down to the present day. The Supreme Court has, on many occasions, dealt with the power thus conferred, and yet it is not susceptible of exact definition. As was said by the Court in Carter v. Carter Coal Company, 298 U.S. 238, 56 S. Ct. 855, 80 L. Ed. 1160, in answering its own inquiry, "What is commerce?", page 297, 56 S. Ct. page 867: "The term, as this court many times has said, is one of extensive import. No all-embracing definition has ever been formulated. The question is to be approached both affirmatively and negatively - that is to say, from the points of view as to what it includes and what it excludes." That this situation exists, we think, is due to the fact that what the court has said on so many different occasions, must be considered in light of the particular circumstances confronting the court in connection with the language used and statements made. This has produced an apparent conflict in authorities difficult to reconcile.
It is urged upon us that the pronouncement of the court in construing the Commerce Clause in cases such as Carter v. Carter Coal Company, supra; Adair v. U.S., 208 U.S. 161, 28 S. Ct. 277, 52 L. Ed. 436, 13 Ann.Cas. 764; U.s. v. E. C. Knight Co., 156 U.S. 1, 15 S. Ct. 249, 39 L. Ed. 325, and Hammer v. Dagenhart, 247 U.S. 251, 38 S. Ct. 529, 62 L. Ed. 1101, 3 A.L.R. 649, Ann. Cas. 1918E, 724, when applied to the instant statute demonstrate its invalidity. Even though we were possessed of the ability, which we disclaim, of analyzing the opinions of the court in these cases, as well as others called to our attention, and distinguishing them from cases which apparently sustain its validity, we could accomplish little, if anything, by so doing. In general, it may be said that the court was dealing with situations quite dissimilar to that which here confronts us. That which is within the sphere of Congressional authority, covers such a wide field of activities that we think it more logical to apply what the Supreme Court has said in cases where the court was presented with circumstances more similar to those here.
Defendant's argument that the act is unconstitutional, it seems to us, is almost if not entirely shattered by the opinion of the court in Brooks v. U.S., 267 U.S. 432, 45 S. Ct. 345, 69 L. Ed. 699, 37 A.L.R. 1407. There, the court was considering the validity of the National Motor Vehicle Theft Act, 18 U.S.C.A. 408, which among other things penalized a person who transported in interstate commerce, a ...