State v. Brandenburg

| Mo. | Feb 14, 1911

BROWN, J.

The defendant was convicted in the circuit court of St. Louis City on an indictment' charging him with maliciously, forcibly and fraudulently enticing and decoying away one James Sheppard Cabanne, Jr., a child of seven years of age, with intent to detain and conceal said child from his father, James Sheppard Cabanne, Sr., in violation of section 4489, Revised Statutes 1909.

The record in this case is rather voluminous, made so by injecting into same the history of the marital infelicities of James Sheppard Cabanne, Sr., and his wife, the parents of the child whom' defendant is charged with feloniously enticing away. The mother of this child, Minnie Leonard Cabanne, deserted her husband on July 16, 1906, and took the child with her to New York and for several months concealed its whereabouts from the father. She claims to have obtained a divorce from her husband (Cabanne), in the British West Indies, in December, 1906, and shortly thereafter married the defendant, who is a newspaper reporter and appears to have a good standing among the members of that profession. She lived with defendant as his wife in New York until the month of December, 1908, when the defendant being either in jail or a fugitive from justice, she was greatly distressed financially and applied to the father to come and get his child and take care of it. Cabanne, Sr., went to New York, secured possession of his child, and placed it in the home of his mother, Julia C. Cabanne,'of St. Louis, where he was living. The mother of the child claims that he promised to return it to her in the following spring if she had a home and was able to take care of it; that he would keep her informed of the child’s health and condition, that he would read to it such letters as she might write and not commit it into the sole custody of Julia C. Cahanne, the child’s grandmother. Cabanne, Sr., the father, denies these promises, but his testimony on that point is so evasive as to leave the impression that he made the promises, and the fact that he failed to write her about the child and in January, 1909', instituted a suit for divorce against the mother, praying to be awarded the sole custody of the child, indicates that he did not intend to keep his promises. The mother received notice of the suit, but the action did not culminate in a divorce to Cabanne, Sr., and award to him the custody of the child until May 3, 1909 (after the alleged crime was committed). On April 16, 1909, the defendant, at the request of the mother of James Sheppard Cabanne, Jr., came to St. Louis and decoyed the child away from its father, who was awa.y from home, by telling it that he was going to take it to its mother; but instead of doing so, he took it to San Francisco, California, where he claims its mother agreed to meet him later. He was arrested there on the charge in this ease and brought back to St. Louis for trial. The evidence does not indicate that the mother demanded the .return to her of the child before she directed defendant to take it away. There was some evidence that the child was allowed by its grandmother to play upon the streets in a filthy condition. This was also denied. The trial resulted in the conviction of defendant and the imposition of a fine of five hundred dollars, from which — after the overruling of timely motions for new trial and in arrest — he brings the ease up here by appeal.

The defendant objected and saved exceptions to many points in the evidence introduced by the State, and also complains in his motion for a new trial of many of the instructions; but in his brief herein filed, seems to stand upon the sole proposition that section 4489, Revised Statutes 1909, does not apply to the taking or decoying away of a child by a parent, nor by the agent of one of the parents;. and that as he was acting as the agent of his wife, the mother of the child, he did not violate this statute in decoying the child away from the home of its father and taking it to California.

OPINION.

Whether or not the defendant’s wife, who was the mother of Cabanne, Jr., would have violated the law had she taken the child away from its father into whose custody it had been voluntarily committed by her, we need not decide. Defendant claims he was the husband of the child’s mother, but even if this were true, he would not, as a stepfather, have any right to its custody under the facts in this case. [Woerner’s American Law of Guardianship, sec. 13; Browne on Domestic Relations (2 Ed.), p. 72.]

If it be conceded that defendant’s wife after surrendering possession of her child, still retained the right to decoy it away from the father, it by no means follows that she could confer that right upon the defendant as her agent. The parental affection flowing from both father and mother to a child of tender years would be a protection to such child as long as it remained in the actual and immediate custody of either of them, and the filial love of the child would in most eases enable either parent to properly control its conduct, but these safeguards to the child would not exist between it and a mere agent like the defendant in this case who was not bound to it by any tie of consanguinity.

It is apparent that one of the objects of the statute under consideration was to protect parents against the mental anguish which necessarily follows the decoying away and retaining of their children, and if a child be taken ox decoyed away from one parent by another parent, the mental anxiety of the parent who thus loses the child would not be nearly so great as in the case at bar, where the child passed into the hands of one who was under no obligation and perhaps no inclination to properly care for it.

We are of the opinion that the right of one parent to invade the possession of another parent to take or decoy away their mutual offspring, if such a right exists, cannot be delegated to an agent, as the mother attempted, to do in this case. Any other construction of the statute would result in untold confusion, litigation and probably in assaults and other breaches of the law.

To rule otherwise would be to hold that when the parents are living apart and a child is stolen or decoyed away from one of such parents, he or she must first ascertain whether the party who took or decoyed the child away is an agent of the other parent, or a mere kidnaper, before having such culprit arrested.

The letter and spirit of the law we are now construing and also the welfare of those unfortunate children whose parents are living apart and who are' denied the soothing atmosphere and benignant influences of homes where conjugal love reigns supreme, forbid us from subscribing to any such construction of the statute as the defendant contends for.

In this case the father had not only the lawful charge but the legal custody of his child, and whatever rights the mother may have had, the defendant violated the law when he invaded the father’s possession and took the child away. He was accorded a fair trial, and we affirm the judgment.

Kennish, P. J., and Ferriss, J., concur.