232 Mo. 531 | Mo. | 1911
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,
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
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
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.