| Kan. | Jul 15, 1889
The opinion of the court was delivered by
This was a criminal prosecution under § 47 of the erimes-and-punishments act. This section reads:
“Every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child, shall upon conviction be punished by confinement and hard labor not exceeding five years, or imprisonment in the county jail not less than six months.”
The principal facts in the case are undisputed. On the 8th day of March, 1889, W.,B- Willis resided in Elk county, in this state, with his family, consisting of his wife and five children, the youngest of which was about two years old, and is the child described in the information. Upon that date Mrs. Etta Willis, the wife of W. B. Willis, left her husband, and with the assistance of the defendant was driven to the Indian Territory. She took with her to the Indian Territory her child, and the child has continued to be in her custody and under her control. She is its mother. The father and mother are the natural guardians of the persons of their minor children, and each parent equally so with the other. (Const., art. 15, § 6; The State v. Jones, 16 Kan. 608" court="Kan." date_filed="1876-07-15" href="https://app.midpage.ai/document/state-v-jones-7884210?utm_source=webapp" opinion_id="7884210">16 Kas. 608.)
As Mrs. Willis, the mother of the child, had the equal right with her husband, the father, to the actual care and control of the child, it is clear that she could not be punished
The judgment of the district court' must be reversed, and as the facts are undisputed the defendant will be discharged.