Commonwealth v. Nickerson

| Mass. | Nov 15, 1862

Dewey, J.

The conviction of the defendants upon the first count of this indictment may be well sustained. The evidence shows an assault upon the person of C. A. T. Rice, and a restraint of his liberty. Every such restraint of the liberty of a person, if not justified by law, is in the eye of the law a false imprisonment, for which the party was liable to an indictment at common law. Com. Dig. Imprisonment, G. 3 Chit. Grim. Law, 835. The like offence is now made punishable by statute, under the provisions of Gen. Sts. c. 160, § 30.

The only question upon this count arises upon the ruling of the court upon that part of it which alleges that the assault and false "imprisonment were committed without the consent and against the will of said C. A. T. Rice.

The instructions to the jury as to what would constitute a seizing and imprisonment against the will of the party were certainly sufficiently favorable to the defendants, as they would exclude all previous knowledge of their object, or cooperation in forcibly taking the child from the custody and care of his teacher, on the part of the child himself.

But in our opinion a more stringent ruling upon this point would have furnished no legal ground for exception in matter of law. The party seized and imprisoned was a child of tender years. The legal custody and care of him was in his father. This had been judicially settled in proceedings instituted by the mother, asking for his custody. The adjudication settled the rights of the parties as to the custody of the child, and rendered illegal and criminal any attempt on the part of the mother or agents acting under her to obtain by violence the possession of him.

Being in the actual custody of his father, whose will alone was to govern as to his place of residence and the selection of a teacher and custodian, this child of nine years of age was incapable of assenting to a forcible removal from the custody of his teacher, and a transfer to other persons forbidden by law to take such custody. He was under illegal restraint, when taken away from the lawful custody and against the will of his rightful custodian ; and such taking is in law deemed to be forcible and against the will of the child. This view is in accordance with that taken in the case of State v. Farrar, 41 N. H. 53, upon a similar indictment. See also State v. Rollins, 8 N. H. 550. It is always so held in cases heard upon a habeas corpus issued upon the application of one of the parents, alleging imprisonment and restraint of the child, and seeking his restoration ; and in the case first cited, it was held equally applicable to the case of an indictment for assault and imprisonment of a child of tender years.

The doctrine of the cases cited from the English reports, of indictments for assaults upon female children, by indecent familiarities to which they assented, and in which by reason of such assent the acts done were held not to amount to assaults, we think should not be extended to cases like the present, where the abduction from the lawful custody of the father by violence and strong hand is the substantial offence.

Without limiting the precise age in which a child would be held not to have the legal capacity to assent to such forcible abduction from the custody of the parent to whom such custody had been assigned by an order of this court, the forcible taking away of a child of nine years of age, against the will of his father, or those to whom his father had committed him for nurture or education, will authorize a jury to find that the child was illegally restrained of his liberty, whatever may have been his apparent wishes or satisfaction in being withdrawn by force from his place of legal custody, and, in the language of the law, “ his place of legal freedom,” and placed under the care of those whose custody was illegal restraint.

It was urged in behalf of the defendants that, to make the defendants criminally responsible in such a case, it should be shown by the evidence that they knew that they were violating the father’s right of custody. It was, in the opinion of the court, sufficient to charge them with the offence set forth in the first count of this indictment, if they, without right or authority, undertook forcibly to seize and, by violence and against the will of the person in whose custody the child was, to remove him therefrom. A man must be held to intend that which must be the natural consequences of his acts; and when one has done an act unaccompanied by circumstances which justify its commission, it is a principle of law that he intended to produce the consequences which have ensued.

It was suggested by the counsel for the defendants that it was an objection to the instructions as to the first count, that, in reference to that as well as the other counts, the court required the government to show that the act was done with the Intent charged in the indictment, whereas no intent is alleged in the first count. This is true, and the probability is that the instructions in reference to the intent were inadvertently applied to the first count, either originally or by an error in the bill of exceptions; as the allegation of intent only applies to the second and third counts. But however that may be, such instructions, if given, furnish no ground for complaint on the part of the defendants, as the only effect they could have was to impose an unnecessary burden upon the government as to the proof necessary to sustain the first count.

The second and third counts present questions of more difficulty, and upon which, in the opinion of the court, the instructions given to the jury cannot be sustained.

These counts contain another element aggravating the offence, and requiring proof beyond that of a naked assault upon and false imprisonment of the child. They charge such assault and false imprisonment to have been done 11 with intent and design then and there the said C. A. T. Rice to send and cause to be sent from and out of the limits of the said Commonwealth.” This allegation must be proved. In many cases we are aware that the criminal intent is to be inferred from the act itself. As already stated, every man is held to have intended the ordinary and natural consequences of his own unlawful acts. But this would not be sufficient here, inasmuch as" the alleged intent goes far beyond the natural consequences of an assault and false imprisonment. It adds a distinct purpose and design to effect an object additional thereto. This purpose may be inferred from circumstances, and need not be proved by direct testimony; but it must be found as a fact to have existed, in order to authorize a conviction on the second and third counts. This point is not established by the rule of the common law, holding each responsible for the acts of others in a joint commission of a crime. The mere fact that the defendants were employed to arrest and forcibly imprison the child, they being wholly ignorant of an intent on the part of their employer, which actually existed, to cause the child to be sent out of the state illegally, would not in law charge them with such intent. Nor does the qualification introduced into the ruling, of “ their intending to put the child into the absolute control of the mother,” in law make them responsible for an intent of the mother to cause the child to be subsequently sent out of the state.

In the case of a specific intent of the character here charged, the defendants must have knowledge of such intent, to make them criminally liable therefor. It would be open to the jury in such cases, as a matter of fact, to find from all the circumstances that the defendants had such knowledge of the intent and purpose for which they were employed to make the assault and false imprisonment, and that they cooperated in such purpose with their employer. But they are not, as a matter of law, to be charged with such intent, upon the proof of intent on the part of the person employing, them, they being found to have been wholly ignorant thereof, and such object not being the natural result or consequence of their employment, or of the acts done by them. Regina v. Cruse, 8 C. & P. 541.

In the view we have taken of this case, it has become unnecessary to consider particularly the questions raised as to the admission or exclusion of evidence on the trial. All that portion of the testimony offered as tending to show the assent of the child, was irrelevant and immaterial.

The result is, therefore, that the verdict on the first count is sustained, and judgment may be entered thereupon, if the attorney general shall enter a nol.pros. upon the other counts.

As to the second and thud counts, the case was submitted to the jury under instructions that were erroneous, and the verdict as to those counts must be set aside.