APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM J. BAUER, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 31, 1971.
On September 26, 1968, the Du Page County grand jury indicted Daniel Clinton Pieler, and the present defendants, Robert Steven Marin and Ethel Marie Marin, his wife, upon charges of aggravated kidnapping. On the defendants' motion, their cases were severed from that of Pieler. A jury found them guilty in February of 1969, and each was sentenced to imprisonment for not less than 15 nor more than 30 years. On this direct appeal they assert that their constitutional rights were violated in several respects.
On September 18, 1968, Hillard Willis Marks, then seven years of age, was on his way home from school when he was told by the driver of a car that his mother was in the hospital. At the driver's request he got into the car, which contained two people. The driver was Daniel Pieler, and the other person was the defendant Ethel Marie Marin. After the boy entered the car, he was driven to the home of the defendants in Riverdale, Illinois. When they arrived there, Pieler told him to get into a laundry bag which was on the floor of the back seat. He did so and was taken in the laundry bag from the automobile into the defendants' home. He was kept there until September 20, 1968, when the defendants were arrested. He was not physically harmed.
At their trial, the defendants contended that the boy was taken with the consent of his father, William Marks, pursuant to an agreement entered into between William Marks and Pieler, designed to extort money from the boy's wealthy grandfather. Evidence was offered from which the defendants sought to have the jury draw that inference. Pieler was not called as a witness.
On this appeal, the defendants advance four grounds for reversal of their convictions. They argue that the prosecutor failed to disclose evidence favorable to them, that statements made by them while in custody were received in evidence in violation of their fifth amendment privilege against self-incrimination and their sixth amendment right to counsel, that the jury was improperly instructed on the definition of the crime of aggravated kidnapping, and that the jury was improperly permitted to dine at a public restaurant during its deliberation on the verdict.
The defendants' contention that the prosecutor failed to disclose evidence favorable to them is based largely upon the circumstance that Pieler was subsequently tried separately, and, as the defendants put it, "admitted the complicity of William Marks and was acquitted of the crime charged". Because we have concluded that the jury was erroneously instructed, it is unnecessary to discuss either that contention or the further contention that prejudicial error was committed when the jury was allowed to eat at a public restaurant during its deliberations.
Each of the four counts of the indictment charged Pieler and the present defendants with aggravated kidnapping. Each count alleged that the victim, Hillard Willis Marks, was a child under the age of 13 years, and that he was taken without the consent of his parents. The primary defense advanced upon the trial of this case was that the father of the victim, William Marks, consented to the kidnapping of his child in order to induce his father, the child's grandfather, to pay a ransom for the return of the child. The defendants' contention is that the judgment must be reversed because the instruction that told the jury what the prosecution must prove in order to establish the defendants' guilt omitted all reference to the effect of consent by the parent or legal guardian when the victim was a child under 13.
The following given instructions bear upon this issue:
"A person commits the crime of kidnapping who knowingly and secretly confines another person against his will; or by deceit or enticement induces another person to go from one place to another place with intent secretly to confine that person against his will." (State 13.)
"Confinement of a child under the age of 13 years is deemed to be against his will if his parent or legal guardian has not consented to the confinement." (State 14.)
"A person who kidnaps another commits the crime of aggravated kidnapping when: the victim is a child under the age of 13 years and the said child's parent or legal guardian has not consented to the confinement." (Def. 24.)
"A person who kidnaps another commits the crime of aggravated kidnapping when: he kidnaps for the purpose of obtaining ransom, money, benefit, or other valuable thing or concession from the victim or from any other person; or the victim is a child under the age of 13 years." (State 15.)
"To sustain the charge of aggravated kidnapping, the State must prove the following propositions: First: That the defendants acted knowingly; and Second: That the defendants secretly confined Hillard Willis Marks against his will; or that the defendants by deceit or enticement induced Hillard Willis Marks to go from one place to another place and that when the defendants did so, the defendants intended secretly to confine Hillard Willis Marks against his will; and Third: That the defendants acted for the purpose of obtaining ransom, ...