6 Wyo. 203 | Wyo. | 1896
William E. John, the plaintiff in error,- was charged by information with unlawfully and feloniously, forcibly and fraudulently carrying away from her place of residence one Jennie John, her place of residence then and there being in the town of Bock Springs, in the county of Sweet-water, and it was alleged that the same was not done in pursuance of the laws of the State of Wyoming, nor in pursuance of the laws of the United States. A plea of not guilty was entered, and upon trial the plaintiff in error was convicted and sentenced to imprisonment in the penitentiary for the term of five years.
Several errors are assigned, among them being the admission in evidence of the record and proceedings of a justice of the peace at Bock Springs showing the pend-ency and disposition of a criminal prosecution upon preliminary examination, wherein one Thomas Sutton was charged with criminal assault upon the said Jennie John, and the latter had been subpoenaed as a witness; also the admission in evidence of the plea of guilty entered by .the plaintiff in error, before the committing magistrate upon his preliminary examination; and the conduct of the trial judge, by which it is urged the judge exhibited to the jury his own opinion of the parties litigant, and the merits of the case.
The principal contention, however, arises upon the rulings of the court, and instructions respecting the effect of the consent of the mother of the child to her removal.
Briefly, the main facts in the case are, that Thomas Sutton, who was the stepfather of Jennie John, he having married the mother after her divorce from the plaintiff in error, was charged with a criminal assault upon the
The facts thus outlined are sufficient, and perhaps more than are required, upon which to consider the principal question arising in the case. It is urged on behalf of the plaintiff in error that having the consent of the mother and the lawful custodian as well as natural guardian of the child, he was not guilty of the crime of kidnapping under the statute. On the other hand the attorney-general earnestly contends that the child was subject to a lawful subpoena to attend a public prosecution as a witness on the part of the State; that for her to wilfully refuse to obey the same, or absent herself was unlawful, and if any other person caused such disobedience of the process of the court it was an offense against the laws of the State, and the mother, in view of such unlawful results, was not permitted or authorized to
There were two counts contained in the information in this case. The second count charged the accused with what is denominated “ child stealing,” alleging that he did take, decoy, and entice away said Jennie John, with the intent to detain and conceal her from one Mary Sutton, her mother. During the trial, upon a motion of the defendant, to compel an election between the two counts, which was granted, the prosecution elected to proceed upon the first count. That count charged kidnapping, under Section 25, Sess. Laws 1890. The statute defining and punishing such offense is as follows: £ £ Whoever kid
In the case of Eberling v. State, supra, the accused was charged with kidnapping a young woman of eighteen years of age. It appears that she went away with him voluntarily, having met him by previous appointment to take a buggy ride. The court say that it could not be contended upon the facts, with any show of reason, that the young woman was forcibly carried away, or that she was arrested or imprisoned with the intention of having her carried away from her place of residence; and, proceeding to discuss that part of the statute which makes it a crime to decoy one away from his place of residence, the court say: ££Of course there could be no such thing
In the case of the State v. Rollins, 8 N. H., 550, the facts were that the overseers of the poor had placed a mulatto boy, about six years of age, and one bf the paupers of the town of Exeter, with the defendant, who resided in Sanbornton, as an apprentice; and the defendant had agreed' in wilting to have and hold him by an indenture to be made by the overseers in case he should
It is clear that in the case just adverted to, the primary right of custody of the boy was in the overseers of the poor, representing the town, as he was a pauper of the town, and evidently without parents, or abandoned by them; that the defendant Bollins had been invested with, but a limited authority over the person of the child, and when he transported him in violation of the purpose for which he had him in charge, he exceeded his authority. The boy could not lawfully consent, and the overseers of the poor had not consented to such disposition, and the act of the defendant clearly amounted to kidnapping.
In State v. Farrar, 41 N. H., 53, a child of tender' years was lawfully under the care and in the custody of its mother, such custody having been awarded to the mother by decree of court. The father by force, without the mother’s consent, took the child away and carried her into the State of Maine. He was convicted, and the verdict was sustained. The court say in the course of the opinion: “In the case of children of that age, when they are in the place of their lawful custody, they are
It will hardly be contended that the crime of kidnapping, as defined by the statutes of this State, is committed, if the person taken away, being capable in law of consenting, goes voluntarily, without objection, in the absence of fraud or deception. The removal must be against the will of the party claimed to be injured; but if the party has been decoyed away fraudulently, the consent having been obtained by deception, the law will regard such consent as a nullity, and the act will be treated as against the will of the person thus decoyed away
In the case at bar, the consent of the mother, with full knowledge of the purposes and motives of the plaintiff in error, seems to have been conceded. The court instructed the jury as follows :
“You are instructed that the consent of Mrs. Mary Sutton to the taking of said Jennie John, if you believe from the evidence such consent was given, is no defense unless the carrying away was done in pursuance of the laws of this State, or in pursuance of laws of the United States. ’ ’ To the giving of this instruction the defendant John excepted.
It is clear that if a parent is not prohibited by law from taking his child away, then it is done in contemplation of the statute, in pursuance of law, and if Mrs. Sutton had the right to consent to such taking, or such consent on her part or any taking away by her of the child was not prohibited by law, then such consent and such taking away by her, or with her consent, would be done in pursuance of law. The instruction referred to, therefore, is somewhat misleading, although possibly technically correct; for it may be true that such consent would be no defense if
Regarding the crime with which plaintiff in error is charged in this case, it must be borne in mind that the gravamen of such crime is the carrying away of a person from his place of residence. It need not be out of the State or even out of the county. It need not be for any particular length of time. The crime is committed, if at all, as soon as the person is carried away from his place of residence forcibly, or fraudulently. It matters not whether the culprit intends to detain his victim a few hours,.or a few days, or permanently. It is the act of carrying away, when done with force or by fraud, or following the statute more closely, as the result of force or a decoying, that constitutes the crime. The act must be unlawful in and of itself. If the act is lawful, it matters not how evil or depraved the motive; the law does not punish bad motives alone. If the act is unlawful, the motive, however good, is of very little consequence in determining culpability. A man steals bread to feed his hungry children; his motives are not bad, but the law, nevertheless, has been violated. The motive or purpose, evil though it may be, does not render the act a crime, which in itself is not one. Clark’s Crim. Law, p. 41. A crime may, however, be aggravated by the motive, and the latter may affect the punishment.
The existence of the subpoena, and the duty of obeying tñe same, and the knowledge of John thereof, serves only
If John was guilty of the crime charged in this case, then Mrs. Sutton, the mother, was equally guilty of the-same crime, she having consented, aided, and abetted him. We are not prepared to assent to the idea that, because Jennie John was desired and had been summoned as a witness, her mother became charged with the duty
It therefore follows that the judgment must be reversed, which is ordered, and the case will be remanded with
Reversed.