255 Mass. 144 | Mass. | 1926
The defendant Stephen C. Bresnahan was tried February 12,1925, and found guilty February 19,1925, on an indictment under G. L. c. 265, § 26, charging him with the offence of kidnapping on August 6, 1924, one Wilbur M. Fisher, with intent to cause him to be confined in this Commonwealth. On March 19, 1925, a sentence of imprisonment and fine was imposed on the defendant.
At the close of the charge the defendant excepted to that part thereof wherein the judge said: "It is no defence in this case that the defendant acted as the agent of the father, if he did so act. That is, in case you find that the defendant was in this automobile with the father, it is no defence. Neither is it any defence, if you find that the defendant did take the child, that he did not know that the custody had been awarded to the mother. Nor is his belief that he was acting under lawful authority any defence, if you find that he was the person who took this child;” and also excepted to that part of the charge which reads: "If you feel that the government has shown beyond a reasonable doubt that he was the man who got out of that car and that judging from his actions or statements he had the intent to take that child and did put that child into the automobile, take him away from that place in Roxbury and put him elsewhere, then your verdict will be guilty.”
The defendant Wilbur H. Fisher was tried March 12,1925, on the first, second, third and fourth counts of an indictment under G. L. c. 265, § 26, charging him on the first count with unlawfully imprisoning on August 6, 1924, "one Wilbur M. Fisher . . . the minor son of the said Wilbur H. Fisher and of one Mary E. Fisher, and the said Wilbur M. Fisher being then and there in the lawful custody of his mother, the said Mary E. Fisher”; on the second count with forcibly carrying on August 6,1924, without lawful authority, "one Wilbur M. Fisher out of this Commonwealth, the said Wilbur M. Fisher being then and there the minor son of the said Wilbur H. Fisher and of one Mary E. Fisher, and the said Wilbur M. Fisher being then and there in the lawful custody of his mother, the said Mary E. Fisher.” On the third count the defendant Wilbur H. Fisher is charged with the offence of kidnapping on August 6, 1924, “one Wilbur M. Fisher, the said Wilbur M. Fisher being then and there the minor son
At the close of the evidence the defendant Fisher requested the judge to give five requests for rulings. The judge declined to give the second, third, fourth and fifth requests, and the defendant duly excepted. No exceptions were taken or saved to the charge. The jury were directed by the judge to return a verdict of guilty on the first and second counts of the indictment, and the third and fourth counts were submitted to them. March 16, 1925, the jury returned a verdict of guilty on the first, second and fourth counts, and not guilty on the third count. March 19, 1925, a sentence of imprisonment and fine was imposed on said Wilbur H. Fisher on the fourth count, but no sentence has been imposed on the first and second counts.
The material facts common to both indictments which the jury could reasonably find, having regard to all presumptions and to the rule of proof beyond a reasonable doubt which governs the administration of the criminal law, are as follows: The defendant Bresnahan, with the defendant Fisher and another person, on August 6, 1924, between half past ten and eleven o’clock in the forenoon, drove an automobile on a street on which was the home of Mary E. Fisher. Near the home the defendants stopped the automobile. Bresnahan got out, picked up Wilbur M. Fisher, two years of age, who was playing in the street, handed him to his father, Wilbur H. Fisher, got into the automobile and drove away.
The defendant Wilbur H. Fisher testified that he picked up his minor child, Wilbur M. Fisher, and took him away in an automobile to Worcester, Massachusetts, thence to Keene, New Hampshire, then to New York, and finally to Montreal, where he was placed in the care of a lady who conducted a baby nursery; that the child was recovered there by the mother and returned to Massachusetts, where he is living with his mother.
The requests for instructions and rulings, in each case, rest upon the assumption that to convict Fisher the Commonwealth must prove beyond a reasonable doubt that he “had actual knowledge of the entry of that decree” of the Equity Court, and that Bresnahan in assisting Fisher could not be guilty if the acts of Fisher were within his legal rights.
As regards Bresnahan the jury could find within the rule
That Fisher intended to take the child from the custody of the mother is admitted; that when he took the child he intended to remove him from the jurisdiction of the court where his petition for custody had been denied for more than two weeks, could be found on his own testimony, as also upon the consideration that a father in the circumstances disclosed in all reasonable probability would have had ascertained that a decree had been issued giving the custody to bis wife, Mary E. Fisher. Putting to one side the question of actual knowledge of the decree, it is plain Fisher was bound to ascertain the terms of the decree when it came down, and that he took the chance that such decree might be in favor of the petition of his wife and consequently acted at his peril.
There was no error in law in the refusal of the trial judge to give the requests and rulings, nor in the charge as given, in either case. Commonwealth v. Nickerson, 5 Allen, 518, 527.
Exceptions overruled.