145 So. 544 | La. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *296 Act No. 221 of 1932, p. 710, § 1, reads as follows: "Whoever shall forcibly seize and carry out of this State, or from one part of this State to another part, or from one part of a Parish of this State to another part of the same Parish, or whoever shall imprison or secrete, without authority of law, any person or persons, and all persons aiding, advising or abetting in such acts, shall be deemed guilty of the crime of kidnapping, and on conviction thereof shall suffer imprisonment at hard labor for not more than twenty (20) years." (Italics by this writer.) *297
He then carried her through woods, fields, and briars, and over the roughest sort of country, a distance of 25 or 30 miles; and when overtaken by the sheriff and his posse, late in the evening of the second day, they had slept in the woods, and had had nothing to eat; and the woman had been given water to drink only twice.
It is certainly her clear duty to do so if he provide for her a place of residence and be ready to receive her there and to furnish her with whatever is required for the convenience of life in proportion to his means and condition.
But if in spite of her duty, without lawful cause, she withdraws herself from the common dwelling and refuses to return and live with him, his remedy is not the use of force to compel her to do so.
For if the wife could be forced to return to her husband's domicile, in other words, if the husband were entitled to thecustody and control of his wife, as parents are of their minor child, who "cannot quit the paternal *299
house without the permission of his father and mother" (Rev. Civ. Code, art.
This view of the case disposes of all the exceptions but one, as aforesaid. The allegation in the information that the parties were separated from bed and board (which puts an end to their conjugal cohabitation and common concerns, Rev. Civ. Code, art.
A witness was permitted to testify that near the place where defendant was shown to have passed, and about the time he passed, he heard a man and woman talking in the dark, and heard the woman say, "Oh Lord, Help me!" and the man say "Hush, and come on" — which was objected to as hearsay; it not being shown that these words were spoken by the defendant or in his presence.
The objection was not good. It was not hearsay. The witness was testifying to an occurrence at or near the alleged scene of the crime, in the same way as if he had testified that he heard the report of a gunshot, or the fall of a body, or seen the flash of a pistol. The trial judge properly says: "The objection went to the effect of the evidence rather than to its admissibility. It was for the jury to determine from all the evidence whether or not the conversation came from the defendant and his wife."
O'NIELL, C.J., concurs in the decree, but deems it sufficient to rest the decision in this case upon the fact that Mrs. Kay had a decree of separation from bed and board. *301