Therefore, in determining the sufficiency of the indictment in the subject case, we are compelled to follow the general common law rule that the state must allege every element of a lesser included offense in order to obtain a conviction under an indictment charging the greater offense. The offense of kidnaping is defined in N.C. Gen. Stat. The lesser included offense of felonious restraint, of which defendant was convicted, is defined in N.C. Gen. Stat. A person commits the offense of felonious restraint if he unlawfully restrains another person without that person's consent, or the consent of the person's parent or legal guardian if the person is less than 16 years old, and moves the person from the place of initial restraint by transporting him in motor vehicle or other conveyance . Violation of this section is a Class F felony.
Felonious restraint is considered a lesser included offense of kidnaping.
The difference between the greater offense of kidnaping and the lesser included offense of felonious restraint is clear from the language of the cited criminal statutes. In addition to not requiring the specified purpose or intent outlined in the kidnaping statute, the offense of felonious restraint contains an element not contained in the crime of kidnaping - transportation by motor vehicle or other conveyance. In fact, it is this element which distinguishes felonious restraint from another lesser included offense of kidnaping, false imprisonment. False imprisonment, like felonious restraint, contains all of the elements of kidnaping, except for the requirement that there be an intent to confine, restrain, or remove another person. Given the plain language of the felonious restraint statute and the distinction between the offenses of kidnaping, felonious restraint and false imprisonment, we conclude that, absent authorization by the legislature of a short-form indictment, transportation by motor vehicle or other conveyance is an essential element of the crime of felonious restraint that must be alleged by the State in a bill of indictment in order to properly indict a defendant for that crime.