91 Neb. 481 | Neb. | 1912
The plaintiff in error, Fred M. Fitzgerald, hereinafter
The information was prepared and filed under section 20 of the criminal code, which reads: “Any person who shall maliciously or forcibly or fraudulently lead, take, orf carry away, or decoy, or entice away, any child under the age of eighteen years, with intent unlaAvfully to detain or conceal such child from its parent or parents, or guardian, or other person having the lawful charge of such child, shall be imprisoned in the penitentiary not more than twenty years nor less than one year.”
Alice Barrett is shown by the evidence to have been a young lady 16 years old at the time of the commission of the alleged crime. She resided with her father and mother in Hayes county, Nebraska. Against the expressed wish of her father, she had a lover, Fred M. Fitzgerald. They had been lovers about four months. They became engaged to be married. As the father objected, they planned to elope. On the evening of September 9, 1911, the young-lady left home with her brother and sister to go to a dance. The brother seems to have knoAvn that Alice was to meet Fred on the way to the dance. Alice and Fred had met in the same way once before. The brother seems to have had knowledge of the friendship entertained by
An examination of the section under which the information was filed shows that the criminal intent necessary to make the defendant guilty in such case is “to detain or conceal such child from its parent or parents, or guardian, or other person having lawful charge” thereof. The facts show that it was a case of eloping for the very natural purpose of getting married. The alleged criminal act was not done “maliciously or forcibly or fraudulently.” Neither was it done to detain or conceal the young lady from her father. The going away was voluntary on both sides, so was the getting married, so was the returning; and, when the mother invited them home, the young husband and wife both appeared together at the paternal residence. They announced their marriage. There was no detention or concealment from the beginning to the end. The court is unanimously of the opinion that the section referred to is wholly inapplicable to this case.
The judgment of the district court is reversed and the case remanded, with directions to dismiss the information and discharge the defendant.
Reversed.