LEVIN, J.

The defendant, Otis L. Adams, appeals his conviction of kidnapping.

Kidnapping is now a statutory, not a common-law crime. The relevant portion of our statute makes it unlawful to "wilfully, maliciously and without lawful authority * * * forcibly or secretly confine or imprison any other person within this state against his will". But every forcible confinement is not the capital offense of kidnapping.

Our kidnapping statute, like most, is so all-encompassing in its literal breadth that unless its operative effect is confined by objective standards it would be void for overbreadth.

Where a kidnapping statute does not in terms require a "carrying away" of the victim, an asportation requirement or, as a substitute, the element of secrecy, has been judicially read into and made a part of the definition of the crime.

There are two basic kidnapping patterns. In one, the victim is seized and removed to another place; in the other, the victim is confined in the place where he is found. In the first, an asportation or movement of the victim is an essential element; in the second, movement is not an element, but secrecy of the confinement is required.

In this case the people do not charge that the victim was secretly confined. The information charged the defendant Otis Adams with "forcibly confining and imprisoning" his victim — the word "secretly" in the statutory phrase "forcibly or secretly confine" was omitted when the charge was drawn.

To save the Michigan kidnapping statute, insofar as it applies to nonsecret confinements, from a declaration of unconstitutionality because of overbreadth we read it as requiring an asportation. A confinement (other than a secret confinement) without a movement of the victim is not kidnapping. And, for reasons which we will spell out, every movement of the victim of an assaultive crime incidental to the commission of that crime is not kidnapping; the asportation must have a significance independent of the assault in order to manifest the capital and separate offense of kidnapping.

In this case the victim, a prison official, was seized in Jackson State Prison by Adams and other inmates and moved from one part of the prison to another. The seizure and movement occurred in the presence of prison guards; the exact location of both the victim and of the defendant Adams was at all times known to prison guards who had the place cordoned off and surrounded by overwhelming armed force. It is not claimed that Adams ever intended to remove his victim from the prison or that he intended to attempt to effect an escape. This is not the usual hostage pattern, nor is it the usual kidnapping pattern.

I.

Facts

On the morning of October 18, 1965, Adams consumed substantial quantities of alcohol and barbiturates in the company of several other inmates of Jackson Prison. Their conversation turned to the grievances — real or imagined — which they felt against the prison administration.

Shortly after 11 a.m., Adams and inmate Edward Whitehead went to the main dining hall of the prison where lunch was being served. Adams cut into the serving line ahead of other inmates and was told by a guard to go to the end of the line. Adams directed some verbal abuse at the guard, then proceeded with Whitehead to the prison's 4-block, a cell block in the northwest portion of the prison. Adams' conduct aroused the attention of two unarmed prison guards who followed him to 4-block.

Because this was the lunch hour, several hundred prisoners were milling about 4-block. The presence of Adams and Whitehead, plus a third inmate, Alvin Shaw, all of whom were highly agitated, as well as the two guards and the hundreds of milling prisoners, led to a disturbance of uncertain proportions.

At this time Inspector Joseph Dembosky, the highest ranking uniformed prison officer, was notified of the disturbance in 4-block. He immediately proceeded to the area and thrust himself into the center of the milling crowd.

Before Inspector Dembosky could take any action, he was seized from behind by inmate Whitehead, who held a knife to his throat. Adams also produced a knife which he used to wave back the prisoners pressing in on Inspector Dembosky and Whitehead. At the trial Inspector Dembosky testified that at this point he said, "Can't we talk about this?" Another witness testified that Dembosky said, "Can't we go somewhere and talk about this?" Adams, Whitehead, and Shaw, all of whom had knives, then accompanied Dembosky at knifepoint out of 4-block into the prison yard.

There were approximately one thousand inmates in the yard as Dembosky, Whitehead, Shaw, and Adams left 4-block. Inspector Dembosky testified that he felt that there was danger of a riot if the party remained in the yard. He suggested that they go to the prison gymnasium to talk things over. Instead, he was forced to accompany Whitehead, Shaw, and Adams to the prison hospital, which was roughly 1500 feet from the entrance to 4-block. During their journey to the hospital, the armed inmates repeatedly shouted warnings to the heavily-armed tower guards that Inspector Dembosky would be killed if they were fired upon.

Shortly before reaching the hospital building, the group was joined by another inmate, Milton Thomas, who was also armed. Together, immediately after entering the hospital, they seized two guards, a prison doctor, and an inmate elevator operator named Hubbard. Shaw, Whitehead, Thomas, and Adams, together with Inspector Dembosky and the other victims, then proceeded to the doctor's lounge on the fifth floor of the hospital.

Adams and his cohorts erected barricades around the lounge. Over an intercom, they repeatedly demanded to see various prison officials, as well as the warden, to air their grievances. They also demanded to see a newspaper reporter. There were repeated warnings that Inspector Dembosky would be killed if they were fired upon.

During the hours that followed, the armed inmates displayed contradictory behavior toward their captives. The physician was released when Adams ascertained that he had a heart condition. Thomas told the warden to notify the pregnant wife of one of the captive guards that he would not be harmed. Contrastingly, inmate Hubbard was severely beaten by Adams, then released as an example of Adams' serious intentions.

A number of prison officials visited the fifth floor landing to discuss grievances. A newspaper reporter summoned to the scene was occupied for almost three hours in recording these grievances. Adams repeatedly expressed his fear of being shot by guards when he left the fifth floor.

After about 5-1/2 hours, Shaw, Whitehead, Thomas, and Adams were persuaded to abandon their barricaded position. Upon being given assurances that they would not be shot, they released their captives unharmed. They then proceeded to the deputy warden's office, where they surrendered their weapons.

The reprehensible nature of Adams' action does not alter our duty to determine whether the evidence against him is sufficient to support his conviction for kidnapping Inspector Dembosky.

II.

The statute and its overbreadth

"The sense of any statute is to be collected from its object and the nature of the subject matter. Particular phrases must be read in the light of the contextual setting. The import of such language is controlled accordingly. The literal sense of terminology cannot prevail over the reason and spirit of the expression as a whole." Dodd v. Copeland (1968), 99 N.J. Super. 481, 486 ( 240 A.2d 444, 446).

"All laws should receive a sensible construction. General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter." People v. Daniels (1969), 71 Cal.2d 1119, 1130 ( 80 Cal.Rptr. 897, 903; 459 P.2d 225, 231), quoting United States v. Kirby (1868), 74 US (7 Wall) 482, 486 ( 19 L Ed 278, 280).

A statute's "spirit and purpose should prevail over its strict letter". Webster v. Rotary Electric Steel Company (1948), 321 Mich. 526, 531.

"When choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication." United States v. Universal C.I.T. Credit Corporation (1952), 344 U.S. 218, 221, 222 ( 73 S Ct 227, 229; 97 L Ed 260, 264); followed in Toussie v. United States (1970), 397 U.S. 112, 122 ( 90 S Ct 858, 864; 25 L Ed 2d 156, 165).

Our kidnapping statute has not been construed by our Supreme Court except in the context of child custody disputes. In those cases the Court rejected a rigid, formalistic reading and set aside the convictions.

What is immediately obvious about the language of our kidnapping statute is the extraordinary range of conduct it might proscribe.

In the phrase "forcible confinement or imprisonment," the word "imprisonment" is clearly a narrower term than "confinement"; every "imprisonment" would be a "confinement". The word "forcible" adds little, if anything, to the word "confine". "Confine," in the sense in which it is used in this statute, clearly speaks of an involuntary restraint of the liberty of the individual, which, of necessity, is brought about by the use of some force. Similarly, as to the words "against his will". If the confinement was voluntary, it would mean that the victim was confined although he was free to leave — an obvious contradiction of terms.

Since "confine" in this context strongly implies force of some kind, the offense is complete when the actor "wilfully, maliciously and without lawful authority" confines the victim. And, since in the ordinary case there is likely to be no question of lawful authority (and besides, lawful authority negatives "malice"), and since the wilfulness required by law does not enlarge the requirement of malice, violation of the terms of the statute occurs whenever the actor "maliciously confines" any other person.

"Malice, in its common acceptation, means ill will toward some person. In its legal sense, it applies to a wrongful act committed intentionally against that person, without legal justification or excuse." Bonkowski v. Arlan's Department Store (1970), 383 Mich. 90, 99.

Although this was said in a civil case, it is the correct definition of the legal meaning of the term "malice" in criminal as well as civil cases.

Accordingly, freed of its tautology, the kidnapping statute, simply put, makes it kidnapping to intentionally confine another person without legal justification or excuse.

It will be observed that the statute makes no reference to the duration or circumstances of the confinement. Literally construed, the statute leads to absurd results. The trespasser who momentarily locks a caretaker in his cottage is placed on the same footing as the professional criminal who invades a home, seizes the occupants at gunpoint, transports them to a secret hideout, and holds them for ransom. The robber who orders his victim to stand motionless while his wallet is removed is guilty of the same crime as the robber who forces his victim to drive for miles to a deserted location, where he is terrorized and abandoned. A group of college students who invade a dean's office, wrongfully confining its occupants, commit the same offense as a gang of rapists who seize a woman and remove her from her family to a place of isolation.

Shopkeepers who wrongfully detain suspected shoplifters, cabdrivers who purposely deliver passengers to the wrong destinations, tavernkeepers who bar exists until bar bills have been paid, all may be subject to civil damage actions, but a sensible penology rebels at the classification of such acts as capital offenses.

As emphatically as these examples offend a rational penal code, they scarcely embrace all the varieties of technically culpable, but scarcely menacing, conduct which violates a statutory ban on "intentional confinement" of any other person.

In Chatwin v. United States (1946), 326 U.S. 455, 463, 464 ( 66 S Ct 233, 237; 90 L Ed 198, 202, 203), the United States Supreme Court recognized the dangers of overly broad constructions of the Federal Kidnapping Act. The Court noted that the framers of the act had used "comprehensive language * * * to cover every possible variety of kidnapping followed by interstate transportation". Nonetheless, the Court acknowledged a duty to define the limits of the kidnapping sanction more narrowly than the language of the act would support:

"Were we to sanction a careless concept of the crime of kidnapping or were we to disregard the background and setting of the Act the boundaries of potential liability would be lost in infinity."

The refusal of the Supreme Court to authorize a "careless concept of kidnapping" reflects an appreciation of the potential for misuse inherent in an imprecisely drawn kidnapping statute. We share this concern.

The doctrine that statutes may be so vague as to violate due process embraces three major classes of legislation. The first, and perhaps most common, is that species of penal statute which fails to give fair notice of the conduct proscribed. A statute whose language is certain, but whose breadth may impinge upon protected First Amendment freedoms, may also be "void for vagueness".

We need not dwell on these issues. The statute before us intrudes upon constitutional safeguards in a far more obvious fashion. The third type of unconstitutionally vague statute is that which confers upon judges or jurors an unlimited discretion to determine who shall be punished for certain conduct.

"A law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide without any legally fixed standards, what is prohibited and what is not in each particular case." Giaccio v. Pennsylvania (1965), 382 U.S. 399, 402 ( 86 S Ct 518, 520; 15 L Ed 2d 447, 450).

Discretion thus unbound by fixed standards becomes not discretion in the legal sense of the term, but, rather, naked and arbitrary power.

It is obvious that virtually any assault, any battery, any rape, or any robbery involves some "intentional confinement" of the person of the victim. To read the kidnapping statute literally is to convert a misdemeanor, for example, assault and battery, into a capital offense. A literal reading of the kidnapping statute would permit a prosecutor to aggravate the charges against any assailant, robber, or rapist by charging the literal violation of the kidnapping statute which must inevitably accompany each of those offenses.

In this connection, it is important to remember that under present precedent and practice a prosecutor is governed solely by his personal judgments; there are no objectifiable standards which must be applied. Plea bargaining is an established practice; a prosecutor may, therefore, threaten conviction of a capital offense with a view to extracting a guilty plea without any review of his charging decision.

Such abuses may not be common in this state; yet, as the United States Supreme Court said in Baggett v. Bullitt (1964), 377 U.S. 360, 373 ( 84 S Ct 1316, 1323; 12 L Ed 2d 377, 386):

"Well-intentioned prosecutors and judicial safeguards do not neutralize the vice of a vague law."

Mr. Justice Roberts warns us:

"Evil men are rarely given power; they take it over from better men to whom it has been entrusted."

Just as it is obvious that the Legislature did not intend the kidnapping statute to expose virtually every other crime against the person to capital sanctions, so too it is obvious that the language of the statute provides no standards for determining who shall be punished for its violation. It is our responsibility to preserve the essence of the statute while construing it to withstand constitutional challenge. Accordingly, we turn to an analysis of the substantive law of kidnapping.

III.

Substantive law of kidnapping

At common law, kidnapping required an asportation of the victim out of the country. Kidnapping was a misdemeanor, and was viewed merely as an aggravated form of false imprisonment; the aggravating factor was the removal of the victim from the sovereign's protection.

Kidnapping statutes in the United States have abolished the requirement that a national or a regional boundary be breached.

Modification of the asportation element of the common-law crime was not the only American statutory departure from the common law. Public revulsion against the wave of carefully-planned and often brutal kidnappings for ransom of the 1920's and 1930's resulted in the imposition of heavy penalties, including the death penalty, for kidnappers, and passage of the Federal Kidnapping Act, the so-called Lindbergh Law. It was in 1931 that Michigan imposed a maximum sentence of life imprisonment for kidnapping.

Another characteristic of kidnapping legislation has been its failure to distinguish between the crimes of kidnapping and false imprisonment. Michigan, along with most states, does not have a separate false imprisonment statute.

These matters aside, the principal question that has perplexed American courts in construing kidnapping legislation has been the degree of asportation required to transform an assault, robbery, or other crime into kidnapping. Torn between the common-law rule that a most significant asportation was required, and the obvious legislative intention to broaden the scope of the offense, the courts, virtually without exception, endorsed the idea that any asportation, however slight, was sufficient to constitute kidnapping.

Representative of this formulation were the opinions of the California Supreme Court in People v. Chessman (1951), 38 Cal.2d 166, 192 ( 238 P.2d 1001, 1017), and People v. Wein (1958), 50 Cal.2d 383, 399, 400 ( 326 P.2d 457, 466). In Chessman, the defendant forced his victim to move 22 feet to his automobile, where he sexually assaulted her. The Court held that, "It is the fact, not the distance, of forcible removal which constitutes kidnapping in this state". In Wein, the Court applied the Chessman standard to uphold the kidnapping conviction of a defendant who forced his victims to move from room to room in their own homes during a series of robberies and rapes. These holdings came under sharp criticism, but were accurate reflections of the state of the law until quite recently.

The first significant departure from the "any asportation" requirement came in another California case, Cotton v. Superior Court (1961), 56 Cal.2d 459, 464 ( 15 Cal.Rptr. 65, 68, 364 P.2d 241, 244). A labor dispute led to the invasion of a farm worker's camp by union members. Several braceros were assaulted and dragged about the camp during the ensuing riot. The California Supreme Court ruled that the assailants could not be convicted of kidnapping, saying that "all 'asportation' in the instant case would appear to be only incidental to the assault and rioting". The Court declared that it should avoid "absurd consequences" in application of the kidnapping laws; it warned that a literal reading of the California statute "could result in a rule that every assault could also be prosecuted for kidnapping". The Court ignored, it did not overule, Chessman and Wein, but the significance of Cotton was not lost on the commentators.

A few years after Cotton was decided, the New York Court of Appeals articulated a new approach to the asportation requirement. In People v. Levy (1965), 15 N.Y.2d 159, 164 ( 256 N.Y.S.2d 793, 796; 204 N.E.2d 842, 844), the defendants accosted the victims, who had just arrived at their home in an automobile. One of the defendants took the wheel, and the victims, husband and wife, were driven about city streets for twenty minutes, covering twenty-seven blocks. During this journey the victims were robbed of money and jewelry.

The defendants were convicted by a jury of kidnapping under the New York statute, which provided that a person who "confines" another with intent to "cause him * * * to be confined" against his will is guilty of kidnapping. The Court of Appeals reversed. Central to the Court's holding was its concern that the broad statutory definition,

"could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes. * * * It is a common occurrence in robbery, for example, that the victim be confined briefly at gunpoint or bound and detained, or moved into and left in another room or place.

"It is unlikely that these restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes, were intended by the Legislature in framing its broad definition of kidnapping to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words."

The Court overruled a contrary prior decision and held that the kidnapping statute was to be limited in its application "to 'kidnapping' in the conventional sense in which that term has now come to have acquired meaning".

Left unresolved in Levy was the precise degree of asportation necessary to constitute "kidnapping in the conventional sense". The opinion did, however, revive the requirement that some meaningful asportation must accompany the crime. In a subsequent case the Court of Appeals declared that "the direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to apply it to crimes which are essentially robbery, rape, or assault and in which some confinement or asportation occurs as a subsidiary incident". People v. Lombardi (1967), 20 N.Y.2d 266, 270 ( 282 N.Y.S.2d 519, 521; 229 N.E.2d 206, 208). But, in a still more recent case, the Court held that "the more complicated nature of the asportation" pursued in the defendant's efforts to kill the victim, removed the case from the Levy-Lombardi rule.

The reasoning of the New York Court of Appeals was not accepted by other courts. Several jurisdictions expressly rejected the idea that a substantial asportation was necessary under broadly-worded kidnapping statutes.

In 1969, by a six-to-one decision, the California Supreme Court overruled its prior constructions in the Chessman-Wein line of cases. People v. Daniels (1969), 71 Cal.2d 1119, 1139 ( 80 Cal.Rptr. 897, 910; 459 P.2d 225, 238), clearly repudiates the doctrine that any asportation of the victim is sufficient to constitute kidnapping. There the victims had been forced to move about in their apartments during the commission of crimes of robbery and rape. The Court declared:

"We hold that the intent of the Legislature * * * was to exclude from [the statute's] reach not only 'standstill' robberies * * * but also those in which the movements of the victim are merely incidental to the commission of the robbery and do not substantially increase the risk of harm over and above that necessarily present in the crime of robbery itself."

A few months ago the California Supreme Court elaborated on its decision in Daniels. See People v. Timmons (1971), 4 Cal.3d 411 ( 93 Cal.Rptr. 736, 482 P.2d 648), where the Court held that the defendant's acts in entering the robbery victims' automobile and directing them to drive it some five city blocks, in order to facilitate the robbery, did not constitute kidnapping since the acts did not "substantially" increase "the risk that the victim may suffer significant physical injuries over and above those to which a victim of the underlying crime [robbery] is normally exposed". Similarly, see People v. Smith (1971), 4 Cal.3d 426 ( 93 Cal.Rptr. 743, 482 P.2d 655), where the Court held that the crime of kidnapping had not been committed where, in the course of robbing a hotel, the defendant caused the night clerk to move about the office and up to a second floor room.

Having reviewed the authorities in some detail, we approach decision.

IV.

The asportation requirement and the standard by which it is applied

We hold that, except in those relatively rare cases where the victim is intentionally locked in the place where he is found and there secretly isolated and confined, a reasonable construction of our kidnapping statute requires an asportation of the victim before the crime of kidnapping is complete. Still to be answered is the extent of the asportation required.

We believe that the history of kidnapping jurisprudence in this country demonstrates the futility of attempting to calculate the requisite asportation in terms of linear measurement. The harm sought to be prevented is not movement of the victim, but his removal from one place to another and attendant increased risks to the victim. The actual distance the victim is transported does not necessarily correspond with the invasion of his physical interest. An asportation of 50 feet may in some cases expose the victim to precisely those abuses which kidnapping statutes are designed to prevent; in other cases, an asportation of 500 feet may alter the victim's situation not at all.

We have concluded that under the kidnapping statute a movement of the victim does not constitute an asportation unless it has significance independent of the assault. And, unless the victim is removed from the environment where he is found, the consequences of the movement itself to the victim are not independently significant from the assault — the movement does not manifest the commission of a separate crime — and punishment for injury to the victim must be founded upon crimes other than kidnapping.

A comprehensive scheme for dealing with this offense rests within the province of the Legislature, not the courts. The standard we apply today does, however, discriminate with some certainty between conduct which ought clearly to be punished under the kidnapping statute and conduct which falls within the scope of other crimes.

V.

The standard applied to the facts of this case

To define "environment" restrictively, e.g., the mere geographic location of the victim, would be to return to the "any movement" concept. The relevant environment is the totality of the surroundings, animate and inanimate.

Applying these criteria to the assault on Inspector Dembosky, we conclude that Adams did not commit the crime of kidnapping. The movement of Inspector Dembosky did not remove him from the prison environment. As his duties customarily took him throughout the entire prison, it cannot be said that moving him from the confused, threatening situation in 4-block to the fifth floor hospital was independently significant from the assault.

The purpose of the movement was neither to avoid detection nor to expose Inspector Dembosky to an increased risk of harm. He was moved to reduce the risk of escalation by providing a cooling-off period. When he was first assaulted the inspector asked, "Can't we talk about this?" And, when the group moved off, he suggested that they go to the prison gymnasium. Instead he was required to accompany the assailants to the fifth floor of the prison hospital. This case is not like a case of street assault where the victim is seized on a thoroughfare and pulled into a dark alley or into an automobile to prevent detection so that the assault can be completed in greater privacy; such a movement might have significance independent of the assault.

The evidence does not support a contention that the movement to the fifth floor of the hospital exposed the inspector to an increased risk of harm because it made his rescue more difficult. Adams and the other men were armed with knives. There is no evidence, no reason to suppose or infer that they were less likely to use their knives if a confrontation with rescuers had occurred at 4-block than at the fifth floor landing of the hospital. Might not the presence at 4-block of hundreds of milling men have made rescue there more difficult? Might not one of the three agitated, perhaps still intoxicated and narcotized, assailants reacted mortally on the spur of the moment to a taunting challenge from an unseen voice in the milling throng? Under the circumstances we are satisfied that the evidence does not support a finding that the movement had significance adverse to Inspector Dembosky independent of the continuing assault.

The inspector was seized in Jackson Prison. It is an atypical place, an armed enclosure that no one can enter or leave without passing through guarded entranceways. Movement from one building to another in Jackson Prison, for purposes of the kidnapping statute, is not significantly different than movement from one room to another in a building, especially where, as here, the movement was under surveillance of armed guards who had the enclosure protected and there was no intention on the part of Adams or the other felons themselves to leave or to remove Inspector Dembosky from the prison.

The movement of Inspector Dembosky did not make the apprehension of the felons less likely, nor did the movement make it less likely that the inspector would be released unharmed. It provided a cooling-off period — which Inspector Dembosky himself wisely sought. It provided time for these impetuous, desperate men to reflect and to draw back from worse folly.

Adams' conduct was highly dangerous and indefensible. The prison and prosecutorial authorities are understandably anxious to see that he is severely punished. Prison guards and officials like Inspector Dembosky mingle with frustrated, assaultive, desperate men. An assault upon any of them is a serious breach of discipline; punishment should be clear, certain, and severe.

Michigan, unlike other jurisdictions, does not have a specific statute making assault by a prisoner on a prison guard or official a crime carrying special penalties. In Michigan, assault upon a prison guard is treated no differently than assault outside of prison walls. The maximum penalties are relatively mild for the kind of aggravated conduct indulged in by Adams and his confederates. That is a good reason for the Legislature to amend the penal code to provide adequate sanctions for an assault by a prisoner. It is not a reason for transforming, without legislative authorization, what under present law may be nothing more than a felonious assault, into an offense which carries with it a possible life sentence.

Criminal statutes, in contrast with the common law, may not be expanded to meet new problems beyond the contemplation of the Legislature when the statute was enacted.

Reversed.

BRONSON, J., concurred.