State v. . Chisenhall

Siikpheed, J.: The statute {The Code, §973) under which the defendant is indicted is different from the English and some of the American enactments upon the subject, in that fraud and force are not necessarily constituent elements of the offence, and it is silent as to the taking being against the consent of the parent or other custodian of the child. Many of the refinements of construction to be found in the text-books, illustrated by the various decisions, have, therefore, but little application to the case before us. “Our statute” (says Ashe, J., in State v. George, 93 N. C., 567) “is broad and comprehensive in its terms, and embraces all means by which the child may be abducted.” The crime is defined in the statute by the term “abduction,” which is a term of well-known signification, and means, in law, “the taking and carrying away of a child, a ward, a wife, &c., either by fraud, -persuasion or open violence.” Webster’s Dictionary. It is clear that the consent of the child, obtained by means of persuasion, is no defence, since the result of such persua sion is just as great an evil as if it had been accomplished by other means. Even under the English statutes, where a *680 “taking” is required, it was said by Wightman, J. (in R. v. Handley, 1. F. & F., 648), that “ a taking by force is not necessary; it is sufficient if such moral force was used as to create a willingness, on the girl’s part, to leave her father’s home.” And in R. v. Makleton, (1 Dears C. C. R., 159), Jervis, C. J., enunciated the true spirit of the law when he said that “the statute was framed for the protection of parents.” Of course, if there is no force or inducement, and the departure of the child is entirely voluntary, there can be no offence. These principles fully sustain his Honor’s charge. But it is insisted that he should have instructed the jury, as requested, that, upon the whole testimony, the defendant was not guilty. This prayer, we suppose, is predicated upon the idea that the declarations of the defendant, as deposed to by W. M. Busbee, were improperly admitted. It appears that the child Eloise and the defendant were found by the mother at the home of Mag Bush, a prostitute, and that the latter had been bound over to Court for the abduction. The mother and the defendant were witnesses for the State, and, during a recess of the Court, were told by Mr. Busbee, a Justice of the Peace, to go to the Solicitor’s room, where they were both examined by the latter, preliminary to the sending a bill of indictment against the said Mag Bush. It does not appear that any proceedings had been taken against the defendant at that time, and her declarations at said interview seem to have been voluntary. She could have declined answering any question which tended to incriminate her. Indeed, she could not have been compelled to have made any statement whatever to the Solicitor, as the examination was purely extra-judicial. State v. Williams, 91 N. C., 599. AVe are unable to see any error in the admission of these declarations, and the exceptions based upon it must be overruled. *681 The testimony was, in our opinion, fully sufficient, in connection with the other circumstances, to warrant a conviction. The defendant stated that she knew that Mag Bush kept a house of prostitution; that she promised to get Eloise to go there, and, at the request of Mag, “she did go to her mother’s and get Eloise and take her to Mag’s,” for the purpose of meeting one Herndon. It was, as we have said, immaterial that the child was willing to go, if her going was “byr anyr means” induced by the defendant, and this question, wTe think, was properly left to the jury. It is further objected that the prosecutrix should not have been permitted to testify to the fact that her husband told her to go after Eloise as soon as he discovered that she had gone off with the defendant. We do not see how this in any way prejudiced the defendant’s case, as it was evidently-introduced for the purpose of showing that the child ivas taken without the father’s consent. It w-as unnecessary', under our statute, for the State to have shown this (State v. George, supra), and if it constituted a defence, it was the duty of the defendant to have established it. She offered no testimony tending lo show such consent, and the evidence objected to was merely irrelevant, as it only tended to rebut a defence which the defendant did not rely upon. Had it been material, however, we think that the acts of the father, and the accompanying language, upon the discovery of the abduction of his daughter, would have been competent evidence to have shown that her absence w-as without his consent. It is also objected that the Court erred in allowing a witness to testify as to the general reputation of Mag Bush’s house. Such evidence is held to be admissible in Connecticut, even against a defendant charged with the keeping of a house of ill-fame. Cadwell v. State, 17 Conn., 467. Such is not-, however, the law in this State, but we think it competent when the character of the house is only collaterally *682 involved, and is attended with evidence of scienter, on the part of the defendant, and is only used for the purpose of showing the intent with which an act is done, as, in this case, to show that the defendant’s object was to prostitute the child. Moreover, the defendant could not have been prejudiced b}' the evidence, as it was shown by her own declaration that Mag Bush was a common prostitute and kept a house of prostitution. Besides, it was unnecessary for the State to have shown the intent of the defendant. There is nothing in our statute which requires that the abduction should be with a particular intent. It is only necessary to allege and prove that the child was abducted, or by any means induced “ to leave” its custodian. We think the exception is without merit. Upon a review' of the whole case, we are of opinion that there is No error.