57 Ga. App. 193 | Ga. Ct. App. | 1938
The State charged that the defendant, “on the 23rd day of January, in the year 1937, . . did then and there, unlawfully and with force and arms, maliciously, feloniously, fraudulently lead, take, carry away, decoy, and entice away one Pearl Carter, she being a child under eighteen years of age, against her will and without her consent, her parents, Lawton Carter her father, and Lovey Carter her mother being then dead, and she then and there having no guardian.” This charge is based on the Code, § 26-1602, which is as follows: “Any person who shall forcibly, maliciously, or fraudulently lead, take, or carry away, or decoy or entice away, any child under the age of eighteen years from its parent or guardian, or against his will, or without his consent, shall be guilty of kidnapping.” In construing this section, the Supreme Court in Gravett v. State, 74 Ga. 191, said that this law “provides for two cases — one, where the child kidnapped
The only witness who appeared and testified at the trial was Pearl Carter, the girl alleged to have been kidnapped. Upon her testimony the case for the State must stand or fall. Prom her testimony it appears that she was an orphan, sixteen years of age, and lived in the home of an uncle. Her uncle’s daughter was the wife of the accused, and she (the daughter) and her husband lived about a half a mile from his (the uncle’s) house. She had no guardian. There -was an intimate association between the two families. In the summer preceding the alleged commission of this crime the defendant began to take the witness with him to various places, usually in company with others. She testified: “On these trips he gave me money, one or two dollars. Up to that time I had had no improper relations with him. He told me that he cared for me. . . He continued for a long time to come and take me out at night. He continued it until we made that trip up the country to Macon together. He took me out regularly until we made that trip, about once a -week. In addition to money he gave me a ring in September. . . He said he loved me, and he gave me money and everything. I loved him at thaí time. I loved him when he started going with me and was giving me these presents. I loved him when he first started. . . When he asked me about going on that trip, I told him I would go. I thought I loved him. When he approached me about making that trip I was on the other side of Douglas. He had not given me
It only remains to be asked, does this evidence authorize a finding that the defendant forcibly, maliciously, or fraudulently led, took, or carried or decoyed or enticed away Pearl Carter against her will and without her consent? Is a defendant who, for a fraudulent and evil purpose, leads, takes, carries, decoys or entices away a girl sixteen years of age, who has no guardian or parent, guilty of the offense of kidnapping under the above-quoted section, where the girl knew of his purpose, and consented to and co-operated in making the trip because she loved him? We think not, for the reason that there is an absence in such case of that essential element of fraud — words or conduct, such as tends to destroy or take away the exercise of free will or choice on the part of the girl who has reached the age of discretion. The fact that the defendant by attentions, presents, etc., caused the girl to become infatuated with him, and because of such infatuation she went away with him, does not make the defendant guilty of kidnapping, if she knew his purpose and planned and co-operated with him in making the trip of her own free will and consent. There is not the slightest evidence that defendant made false and fraudulent promises to her in order to induce her to make the trip. She was of sufficient age to make her capable of entering into a valid contract of marriage, and capable of consenting to sexual intercourse to prevent its consummation from being rape. We can conceive of instances where a girl may be deceived and go away with a man under some pretence, with no intent to be taken away on a trip. However, in the present case the going away was planned by both parties for several months before its consummation. Indeed the evidence shows that she had been making other trips with the defendant before the trip for which he was indicted. Though she was in love with him, which love may have been induced by the defendant by his attentions and gifts, yet it is still evident from her testimony that she was in full possession of her faculties and had a perfect acquaintance with what she was doing; and therefore it does not seem that she was fraudulently decoyed or enticed way against her will and without her consent. The facts and eireum
Judgment reversed.