Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, concurring in part and dissenting in part.
Johnny Ray Smith, presently an inmate of Alcatraz, began his career of crime as a juvenile. Soon thereafter he escaped from the Federal Correctional Institution at Tallahassee, Florida. At age 26 he had twice been convicted of violations of the Dyer Act, 18 U.S.C. § 2312, 18 U.S.C.A. § 2312, was serving 25 years in a Florida prison for armed robbery, and had seriously wounded an officer while fleeing from the scene of the latter crime. He, with two juvenile inmates, escaped the Florida prison, burglarized a house, stole a shotgun, and allegedly kidnaped Alan W. Spearman, Jr., at shotgun point, while the latter was sitting in his company's automobile. They forced Spearman to accompany them in the car across the Florida line into Alabama. There, after the release of Spearman, they abandoned the car and were later arrested in their hiding place under a building. Each admitted guilt and asked for a speedy trial. Smith advised the United States Commissioner, the Federal Bureau of Investigation, the prosecutor and the district judge that he did not want a lawyer; he waived indictment and venue, pleaded guilty to an information charging kidnaping and threw himself on the mercy of the court in these words:
'Well, your Honor, I would like for you to take under consideration that there was no viciousness in connection with this abduction of this boy. We were nice to him and did not harm him any way and we wanted transportation and did not harm him any at all.'
Smith received a 30-year sentence; the juveniles 15 years each. He was sent to Alcatraz and from there has prosecuted a series of motions under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, appearing twice to testify in the District Court of Florida. The Court of Appeals has considered his case three times and he is now here attacking his sentence on two points: (1) Can a kidnaping charge, where the kidnaped person is released unharmed, be prosecuted by information; and, (2) Is due process violated when the trial judge, before a guilty plea is entered and outside the presence of the accused or his counsel, confers with an FBI agent concerning the facts of the charge and the prior record of the accused? The Court, without reaching the second question, says that kidnaping can be prosecuted only by indictment and that a charge in the general words of the statute is sufficient.
In attempting to do what it believes to be a great right the Court in reality does a great wrong to the administration of justice. The most serious result is that the Court's procedure allows the United States Attorney to secure an indictment for a dapital offense without the grand jury's knowing tat he is doing so. This deprives kidnaping defendants of the very protection of the Fifth Amendment that the Court professes to be enforcing. The Court also clouds the meaning of Rule 7(b) as to waiver of indictment by carving noncapital kidnaping offenses out of its specific permissive terms.