Commonwealth v. Myers

146 Pa. 24 | Clarion Cty. Ct. Qtr. Sess. | 1892

Opinion,

Mb,. Justice McCollum:

The appellant, Ira Myers, and his mother, Elizabeth Myers, together with divers other persons whose names were to the inquest unknown, were indicted for conspiring to “ kidnap, decoy, and carry away a certain child 'under the protection, control, and authority of one Jessie Myers,” and for taking said child, in pursuance of the conspiracy, from the possession of “the said Jessie Myers.”

The case was evidently regarded in the court below as an indictment for a conspiracy to commit the offence described in the ninety-fourth section of the act of March 31, 1860, P. L. 405, and for the commission of the offence in pursuance of the conspiracy. The indictment is defective in several particulars. It does not disclose the name or sex of the child. It does not allege that the child was under the age of ten years, or that the accused intended to deprive its parent or parents, or other persons having the lawful charge of the child, of the possession of it, or to steal any article of apparel, or ornament, or other thing of value or use upon or about its person. An indictment which omits these essential ingredients of the statutory offence should be quashed on motion.

But, turning from the defective indictment to the equally defective proofs offered to sustain it, we find that the appellant is the father of the child, and that the unknown persons assisted him in obtaining, without violence or a breach of the peace, possession of it. It is admitted that an indictment will not lie against him for taking peaceable possession of his own child, nor against them for aiding him in doing so; but it is seriously contended that their agreement with him to render the assistance he sought, constituted a conspiracy to violate the ninety-fourth section of the act to which reference has already been made. A conspiracy entered into to induce and procure other persons to do an act prohibited by statute, is an indictable offence, whether the object is effected or not: Hazen v. Commonwealth, 23 Pa. 355. And so is a conspiracy to commit an assault and battery: Commonwealth v. Putnam, 29 Pa. 296. A conspiracy to cheat by offering to sell forged foreign bank notes of a denomination the circulation of which is prohibited in this state, is also indictable: Twitchell v. Commonwealth, 9 Pa. 211. But, the case at bar is not governed by or analogous to the cases cited, because the agreement which is called a conspiracy, was not to violate a penal statute or to commit a common law offence.

The ninety-fourth section of the act of 1860 is not applicable to an effort by a father to obtain peaceable possession of his child, nor to the parties who at his request assist him in effecting his object: Burns v. Commonwealth, 129 Pa. 138. If he commit an assault and battery, or a breach of the peace in execution of a purpose which is not criminal, he may be indicted and punished for it; and if he conspire with others to commit these offences, as a means of obtaining possession of his child, an indictment for conspiracy will lie against them. But he .may request and accept assistance in securing possession of it, without violating the statute in question, or committing an indictable offence. In such case, neither he nor the parties aiding him can be held as criminals, if unlawful means are not agreed upon or used to accomplish their purpose. • In Burns v. Commonwealth, supra, it was distinctly ruled that Gregory ■and the parties aiding him were not within the purview of the act of 1860 in relation to kidnapping. It is decisive of this case, because there is no material distinction between them, as to the action of the parties or the motives which prompted them.

The judgment is reversed, and the appellant, Ira Myers, is discharged.