264 P. 1069 | Kan. | 1928
The opinion of the court was delivered by
Willard E. Taylor was convicted upon a charge of kidnaping a child, whose custody had been given to Edna Taylor, his former wife, under a decree of the district court. The judgment' was based upon a verdict of the jury that he was guilty of forcibly taking and carrying away Nellie Lorraine Taylor, a child under the
It appears that the defendant and Edna Taylor were married on. March 15, 1923, and defendant claimed that the child was born of a former marriage of the defendant Willard E. Taylor to Pearl Brown, who died in 1923. In an action of divorce brought by the defendant against Edna Taylor, she filed a cross petition alleging misconduct, including adultery, on his part upon which she asked for a divorce and the custody of the child. He failed to appear and prosecute his action at the time set for the trial, and upon her evidence the court found that the allegations contained in her cross petition were true and adjudged and decreed that Edna Taylor be divorced from the plaintiff and that she be given the care, custody and control of Nellie Lorraine Taylor, her stepchild. It appears that the child was brought into the home immediately after the marriage in 1923, and Edna Taylor had kept and cared for the child until the time she was alleged to have been kidnaped by the appellant on April 11, 1927.
It is the contention of the defendant that the order granting a divorce to Edna Taylor and the award to her of the custody of the minor child was absolutely void in that the statute (R. S. 60-1510) gives the court authority to make provisions for the guardianship, custody and support of minor children of the marriage, but makes no provision for stepchildren, and that Nellie Lorraine Taylor was only the stepchild of Edna Taylor. The provision referred to is:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and modify or change any order in this respect whenever circumstances render such change proper.” (R. S. 60-1510.)
In making provision for the custody, support' and education of children when a divorce is granted, does the clause of the statute authorizing provision to be made for “minor children of the marriage” deprive the court of such power where one of the parties is the natural parent of the child and the other its step-parent? It may be assumed that the appellant was the father of the child, a fact about which there was some question in the evidence. It is conceded that Edna Taylor to whom the custody was given was a stepmother. She had had the care of the child since her marriage to
It is argued that the question should have been determined in a. habeas corpus proceeding rather than in the action for divorce. It has been said that:
“A proceeding to determine custody of an infant is substantially in the nature of a guardianship proceeding. The proceedings may be by habeas corpus or in divorce proceedings, but such proceedings are not the only ones in which the right to the custody may be adjudicated. Any pleading which shows upon its face that the welfare of an infant requires that an order maybe made in regard to his custody, is sufficient.” (31 C.J. 993.)
The jurisdiction of the court is a continuing one, and its decree-may be modified and the custody changed if conditions should be changed and where the welfare of the infant demands a modifica
There are several complaints as to procedural rulings. One was that the court permitted the prosecution to cross-examine appellant as to his former marriages. A question arose as to whether he was the father of the child, a matter about which there was dispute, and about which he had testified. He had been married four times, and testified that the child was the fruit of his second marriage with Pearl Brown; but there was testimony that the child was born during the wedlock of Clarence and Pearl Brown, and prior to his marriage with Pearl Brown. There was no error in the admission of the testimony.
Another objection was the admission of testimony as to a former arrest of the defendant upon a criminal charge. The defendant was a witness in the case, and the testimony in question was for impeachment purposes and was not error.
Complaint is also made of an instruction of the court to the effect that Edna Taylor had lawful charge of the child, and that if the jury found by the weight of the evidence that defendant induced the child to leave the dwelling where she was being cared for and was driven by the defendant in an automobile to Pampa, Tex., such actions on his part would constitute a forcible taking and carrying away of such child within the meaning of the statute; and if the jury found upon the evidence that the taking and carrying of such child was done with the intention of concealing and detaining her from the person having the lawful custody of the child, he would be guilty of the offense charged. In that connection the court added that some testimony had been introduced that when the child was
Some complaint is made of the arguments of the prosecuting attorney, but an examination of these leads to the opinion that they are not of a kind to be prejudicial to the defendant nor to constitute a ground for reversal.
The judgment is affirmed.