66 So. 207 | Miss. | 1914
delivered the opinion of the court.
E. 0. Powe was charged with kidnapping’ his child, a girl four years old. It is alleged in the indictment that he led, took, carried, and enticed away the child from her mother, who was then legally entitled to her custody and possession. Omitting the formal parts, the indictment reads:
“That E. 0. Powe, on the 12th day of December, A. D. 1911, in the county aforesaid, did enter into a certain contract with one Sudie W. Powe, who was then and there his wife, whereby, for and in consideration of the dismissal by the said Sudie W. Powe of a certain suit in the chancery court of Wayne county, Mississippi, wherein the said Sudie W. Powe was complainant and the said E. 0. Powe was defendant, which was then and there pending, and in which the said Sudie W. Powe was seeking the recovery of alimony and support against her said husband, the said E. 0. Powe, and also the recovery of and a decree giving her the care and custody of the two children of her and the said E. 0. Powe, to wit, Wilda, aged four years, and Mildred, two years of age, he, the .said E. 0. Powe, did covenant and agree to convey to the said Sudie W. Powe certain lands in full discharge of all claims for support as prayed for by her, and did agree that the said Sudie W. Powe should have full and complete control, custody, and possession of the two said children. The said Sudie W. Powe did then and there dismiss her said suit as she agreed, and did have the custody and possession of the two said children until the 27th day of April, 1912. And the jury aforesaid, upon their oath aforesaid, do further present that on the 27th day of April, 1912, having surrendered all right to the custody and possession of the said children aforesaid, did unlawfully and feloniously lead, take, carry away, and entice away, wilfully and maliciously, the said child Wilda, under fourteen years of age, to wit, of the age of four years, with the unlawful, willful, malicious, and*775 felonious intent then and there to detain and conceal said child from its said mother, to wit, Sudie W. Powe, who was then and there legally entitled to the custody and possession of the said child, Wilda, as aforesaid, contrary to section 1079 of the Code of Mississippi, 1906.”
A demurrer to this indictment was sustained. Several grounds were assigned in the demurrer; hut it is only necessary for us in this opinion to notice the ground that the indictment charges no offense under the law. It will be seen that the custody of the child was given to the mother through an agreement between the parents. There was no award of the custody by decree of court.
The question for decision here is whether the father can be held criminally liable on the charge of kidnapping his own child, where its custody was in the mother solely by virtue of an agreement with the father. It was decided in the case of State v. Farrar, 41 N. H. 53, that a father could be held on the charge of kidnapping his own child where he took it from the lawful custody of its mother; but in that case the custody of the child was assigned to the mother by decree of court, and it was said that the father, by force of the decree, had lost his right over the child. In the case of In re Peck, 66 Kan. 693, 72 Pac. 265, it was held that both parents were guilty of kidnapping their children, where they were taken from their grandmother, to whom their custody had been awarded by the court in a habeas corpus proceeding. The grandmother was held the person having lawful charge of the children, even against the parents.
In both of the eases above referred to the children were in the custody of persons by decree of court. We find no decision in this state dealing with the question presented in those cases, and we have been unable to find any case reported from any court discussing the precise question now before us. In a habeas corpus proceeding to determine the question as to the custody of the children between the parents, undoubtedly the agreement set forth
This is a prosecution by the state for a violation of a statute. The duty to support and care for his child is imposed upon the father by law. He is answerable to the state for the abandonment and failure to support his child. He cannot, by agreement with the mother of the child, relieve himself of his responsibility to the state in .the performance of his duty. While this responsibility continues, certainly there goes along with it some right over the child. It should not be said that, by reason of the agreement in this case, there has been such complete annulment and dissolution of the sacred relation of parent and child as to render the father guilty of kidnapping when-he takes into possession his own child. The welfare and integrity of family organization, of which the father should be the head, forbids such holding. We must also bear in mind, while considering this question, that agreements for separation between married couples are not looked upon with favor.
Admitting that we will in this state follow the decisions of the courts of New Hampshire and Kansas herein referred to, surely we' cannot give the same force to the agreement between the parents as to a solmen decree of a court of competent jurisdiction taking the custody of the child from one parent and awarding it to another. Under the facts stated in the indictment, appellee should not be held for the crime of kidnapping. The demurrer was properly sustained.
Affirmed.