two sailors from a certain county of the state and conveying them twenty miles across the channel to an island which formed part of the same county does not constitute kidnaping. On the other hand, under the statutes of Louisiana, it has been held that an indictment for the forcible seizure and carrying a person from one part of the state to another part is supported by proof that the carrying was from one part of a city in the state to another part of that city.*4 And under a Maine statute it has been held that to incur the penalty for carrying or transporting "out of this state, any person under the age of twenty-one. to any parts beyond the sea, without the consent of his parent, master, or guardian," the carrying must be to some foreign port or place, and not merely from one state to another;5 while under a New York statute it has been held that where the intent and expectation is that the seaman kidnaped will be carried out of the state, the offense is complete, although the ship on which he is taken be not destined to leave the state. § 332. Physical force not essential.-Actual force is not essential to constitute kidnaping. Intimidation may take the place of personal violence, and so may fraud. When the proof shows that the mind was operated upon by falsely exciting the fears, by the use of threats or undue influence, amounting substantially to a coercion of the will, it is sufficient. In weighing the evidence, the jury should take into consideration the condition, education and mental capacity of the person kidnaped, and all the circumstances connected with the transaction.8 3 Ex parte Keil, 85 Cal. 309, 24 Pac. 742. 4 State v. Backarow, 38 La. Ann. 316. 5 Campbell v. Rankins, 11 Maine 103. 6 Hadden v. People, 25 N. Y. 373. To constitute the crime of kidnaping, the removal of the party must be against his will; but where he is decoyed away fraudulently, his consent having been obtained by deception, the law regards such consent as a nullity, and the act is treated as against the will of the party decoyed away.9 On the other hand, when the person taken away is capable in law of giving consent, and, in the absence of fraud or deception, goes voluntarily, the taker is not guilty of kidnaping. 10 Thus, where a married man, somewhat intoxicated, induces a girl of his acquaintance, eighteen years old and unmarried, to go with him in his buggy to another state, where they commit adultery, and he subsequently takes her home at her request, he does not commit the crime of kidnaping.11 § 333. Age and consent of person taken.—A child of tender years is incapable of giving a valid consent to be taken away by a person not entitled to his custody. Thus, a person who carries away a child eight years of age, or even eleven years of age, the latter manifesting a willingness to go, may be guilty of kidnaping the child.12 12 The consent of a girl to go, from her parent's home, to another county with a man, is no defense to the criminal charge of kidnaping. 13 But since in Georgia a girl of fourteen may be married without her parents' consent, it is not kidnaping where a man takes her away from her parents and marries her with her consent.14 A divorced father who forcibly takes a child four years old awarded to the custody of the mother and carries it out 9 John v. State, 6 Wyo. 203, 44 Pac. 51. 10 John v. State, 6 Wyo. 203, 44 Pac. 51. 11 Eberling v. State, 136 Ind. 117, 35 N. E. 1023. 12 Davenport v. Commonwealth, 1 Leigh (Va.) 588. See also note to 32 L. R. A. (N. S.) 845. 13 Thweatt v. State, 74 Ga. 821. 14 Cochran v. State, 91 Ga. 763, 18 S. E. 16. of the state is guilty of kidnaping.15 But where a father takes a child which is under a mother's custody by virtue of agreement of the parents, he is not criminally liable for kidnaping.16 § 334. Specific intent essential.-To constitute the crime of kidnaping the person who commits the act must entertain a specific criminal intent." Thus, a father, who honestly believes that his daughter is insane and institutes proceedings which culminates in her confinement in the state hospital for the insane, is not guilty of the crime of kidnaping, although he does not exercise that care and discretion which an ordinarily prudent man would exercise under the circumstances, since the malicious intent which is essential to the crime is lacking.18 Moreover, the indictment or information charging kidnaping must allege this specific intent. When it alleges the forcible confinement and imprisonment of a person within the particular state, against his will, and without lawful authority, but fails to allege any specific intent in such confinement, it charges merely the common-law offense of false imprisonment. 19 § 335. Intent to carry away from residence.-Where a statute provides that, "Whoever kidnaps, or forcibly or fraudulently carries off or decoys from his place of residence," etc., the term "residence" is given a liberal interpre 15 State v. Farrar, 41 N. H. 53. See also State v. Tillotson, 85 Kans. 577, 117 Pac. 1030, Ann. Cas. 1913A, 463; Hard v. Splain, 45 App. (D. C.) 1. 16 State v. Powe, 107 Miss. 770, 66 So. 207, L. R. A. 1915 B, 189n. 17 Smith v. State, 63 Wis. 453, 23 N. W. 879. But see State v. Hol land, 120 La. 429, 45 So. 380, 14 Ann. Cas. 692. 18 People v. Camp, 66 Hun 531, 21 N. Y. S. 741, 10 N. Y. Cr. 318, 51 N. Y. St. 30 (affd., 139 N. Y. 87, 34 N. E. 755). 19 Smith v. State, 63 Wis. 453, 23 N. W. 879. tation and is held to be used in the sense of any place where the child has a right to be.20 § 336. Unlawful arrest.—When a peace officer, while acting in his official capacity, properly executes a warrant regularly issued by a court of competent jurisdiction, in no sense can he be guilty of the crime of kidnaping.21 On the other hand, when a peace officer acts unlawfully under a warrant which affords him no justification he may be guilty of this crime. Thus, where a constable, acting under a warrant regular on its face, arrests a woman in one county and takes her into another and there places her in a house of prostitution, instead of taking her before a magistrate as directed by his warrant, he is guilty of kidnaping.2 22 § 337. Persons not liable.-One who is entitled to the legal custody of another can not be guilty of kidnaping him. Thus, a father, who has not parted with his parental right to the custody of his minor child can not be guilty of kidnaping the child.23 One who assists a wife in leaving her husband and taking away the infant child of herself and husband is not guilty of kidnaping, owing to the fact that she is as much entitled to the custody of the child as its father.24 But where a person harbors and conceals a child kidnaped by others he is guilty, under some statutes, as principal.25 § 338. The indictment or information.-At common law. an indictment is not bad for duplicity or misjoinder because it charges assault, false imprisonment and kidnaping.26 20 Wallace v. State, 147 Ind. 621, 47 N. E. 13; Anderson's Law Dict. 21 Ex parte Sternes, 82 Cal. 245, 23 Pac. 38. 22 People v. Fick, 89 Cal. 144, 26 Pac. 759. 23 Hunt v. Hunt, 94 Ga. 257, 21 S. E. 515; John v. State, 6 Wyo. 203, 44 Pac. 51; State v. Dewey, 155 Iowa 469, 136 N. W. 533, 40 L. R. A. (N. S.) 478. 24 State v. Angel, 42 Kans. 216, 21 Pac. 1075. 25 Commonwealth v. Westervelt, 11 Phila. (Pa.) 461, 32 Leg. Int. 346. 26 State v. Rollins, 8 N. H. 550. Nor is an information bad for duplicity or misjoinder where it charges a defendant with attempting to take and entice away two children under the age of twelve years, without intent to detain and conceal them from a person having their lawful custody.27 In an indictment for kidnaping a child, it is not essential to allege from what place the child was taken by the defendant, and by what means it was enticed away.28 And where an indictment for kidnaping alleges that defendant forcibly took the prosecutrix "for the purpose and with the intent to wilfully and feloniously employ her * * * for the use, unlawfully," of certain named persons, the intent is surplusage and need not be proved.29 § 339. A misdemeanor at common law.-At common law, kidnaping is only a misdemeanor ;30 but in some states, by statute is made a felony.31 27 People v. Milne, 60 Cal. 71. 28 Dowda v. State, 74 Ga. 12. 29 People v. Fick, 89 Cal. 144, 26 Pac. 759. 301 East P. C. 430; Furlong v. German-Amer. Press Assn. (Mo.), 189 S. W. 385. 31 Illinois: Hurd's Rev. Stat. (1916), ch. 38, §§ 166a, 166b. Where the proof shows that the defendant procured the intoxication of a sailor with the design of getting him on shipboard without his consent, and that he carried the sailor aboard in that condition, it establishes the crime of kidnaping. Hadden v. People, 25 N. Y. 373. Where a person, under the false and fraudulent pretense that he had secured employment for a certain girl as governess in the fam ily of a certain person, induced her to take passage on a steamer for a foreign port for the purpose of engaging in that service, when, in fact, the person named by defendant to the girl kept a house of prostitution at that port, for which defendant acted as procurer, and defendant's object in inducing the girl to go to that port was that she should become an inmate of such house, he is guilty of inveiglement and kidnaping. People v. De Leon, 109 N. Y. 226, 16 N. E. 46, 4 Am. St. 444n. (The term "inveiglement" implies the acquiring of power over another by means of deceptive or evil practices, not accompanied by actual force.) |