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for lucre. “But it is not necessary to state that it was done with an intention to marry or defile; because this is not required by the words of the act, nor would the absence of it lessen the injury.” It seems, however, to be both safe and usual to insert it." 3

$ 623. Woman as witness. The marriage effected by force does not make the woman a wife, unless afterward, by voluntary cohabitation or otherwise, she ratifies it. Therefore she

, may be a witness against the man at his trial. Therefore, also,

On attempt to debauch.- On an information for attempting to debauch a young lady, she was very properly admitted to testify in the defendant's favor.6

$ 624, In conclusion,-- these cases, like others, will present general questions of pleading and evidence, not best to be entered into a connection like this.?

1 Bruton v. Morris, Hob. 182; 1 amination in evidence might be more Hawk. P. C. (7th ed.), ch. 41, $ 5. questionable.” 1 Hale, P. C. 661.

2 Fulwood's Case, Cro. Car. 488; 1 This would make the marriage good Hawk. P. C. (7th ed.), ch. 41, $ 6. by reason of the subsequent consent 31 Hale, P. C. 660.

thereby implied. 1 Bishop, Mar., Div. 11 Bishop, Mar., Div. & S., $ 538 et & S., & 545. Still, it might be a quesseq.

tion whether she should not be re5 Wakefield's Case, 2 Townsend, St. ceived as a witness under the same Tr. 112, 2 Lewin, 279; 1 Bishop, Mar., policy of the law which permits a Div. & S., & 512 and note; Fulwood's wife to testify to a battery inflicted Case, 1 Hale, P. C. 650, 661, Cro. Car. on her by the husband. And see the 488; Rex v. Fezas, 4 Mod. 8; Brown's observations and ruling of Hullock, Case, 1 Vent. 243. Speaking of the B., who so held in Wakefield's Case, last cited case, Lord Hale says: “But supra, at pp. 287, 288, of Lewin. had she freely without constraint 6 Gray's Case, Skin. 81. lived with him that thus married ? See Reg. v. Barratt, 9 Car. & P. her any considerable time, her ex. 387; S. v. Tidwell, 5 Strob. 1.




§ 625, 626. Introduction.

627-643. Law of the offense.
644-652. The procedure.

$ 625. Conspiracy, distinguished.- We are not to treat in this chapter of conspiracies. But it may be borne in mind that a conspiracy to bring about the carnal defilement of a young woman, or even, if she is under guardianship or the legal restraint of parents, being a minor, to procure her marriage without the consent of those entitled to forbid the nuptials, is, both in England and this country, indictable at the common law.

$ 626. What for this chapter and how divided.— Having in the last chapter considered only forcible abduction, we shall in the present take into view most of what is ordinarily contemplated under the joint heads of Abduction and Seduction; as to, I. The law of the offense; II. The procedure.


$ 627. Old English statute.-In 1557 the statute of 4 and 5 Phil. and M. (ch. 8), after a long recitation of grievances in section 1, made it, in section 2, punishable "to take or convey away, or cause to be taken or conveyed away, any maid or woman-child unmarried, being under the age of sixteen years, out of or from the possession, custody or governance, and against the will, of the father of such maid or woman-child, or of such person or persons to whom the father of such maid or womanchild by his last will and testament or by any other act in his

1 Crim. Law, II, § 235; Twitchell v. Mears, 1 Eng. L & Eq. 581, 2 Den. v. Com., 9 Pa. St. 211; Anderson v. C. C. 79, Temp. & M. 414; Rex v. OsCom., 5 Rand. 627, [16 Am. D. 776;] sulston, 2 Stra. 1107. And see Crim. Respublica v. Hevice, 2 Yeates, 114; Law, I, SS 501, 502, 767, 768; Grey's Mifflin v. Com., 5 Watts & S. 461, [40 Case, 9 How. St. Tr. 127; 8. C. nom. Am. D. 527;] Rex v. Thorp, 5 Mod. Gray's Case, Skin. 81; S. v. Savoye, 48 221; Reg. v. Blacket, 7 Mod. 39; Reg. Iowa, 562.


life-time hath or shall appoint, assign, bequeath, give or grant the order, keeping, education or governance of such maid or woman-child; except such taking and conveying away as shall be had, made or done by or for such person or persons as without fraud or covin be or then shall be the master or mistress of such maid or woman-child, or the guardian in socage, or guardian in chivalry, of or to such maid or woman-child.”

$ 628. Whether common law with us. The date of this enactment is prior to the earliest settlements in this country. It would seem, therefore, to be a part of our common law. Kilty says it was received in Maryland as such;? but the Pennsylvania judges, not inclined to include a large number of English statutes, omit this one in their report. It was made specially of force in South Carolina; and it is held there not to be restricted to heiresses and persons of quality, whoin the recitations of grievances in section 1 were particularized. The Massachusetts commissioners on a penal code observe that its date “would render it a part of our common law, provided it should be deemed to be applicable to our laws and institutions and state of society; and it seems to be obviously so applicable."5 It appears recently to have been assumed not to be of force in North Carolina..

$ 629. How the earlier common law. This offense, where there is no force and no conspiracy, but only the guile of a single person is resorted to, is, both on reason and authority, not indictable by the common law, aside from the statute.?

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1 See, for the entire provisions, in. 5 Sup. Report Penal Code, 12. cluding subsequent sections and the 6 S. v. Sullivan, 85 N. C. 506. expositions, 1 Hawk. P. C. (Curw. ed.), 7 Rex v. Marriot, 4 Mod. 144; S. v. p. 125 et seq. See also Rex v. Bastian, Sullivan, 85 N. C. 506. See Rex v. 1 Sid. 362; Rex v. Pierson, Andr. 310; Moor, 2 Mod. 128; 1 Deac. Crim. Law, Rex v. Cornforth, 2 Stra. 1162; Rex 6; 1 East, P. C. 458, 459. The last v. Lord Ossulston, 2 Stra. 1107; Reg. three places referred to may have 2. Hopkins, Car. & M. 254; Reg. v. created some doubt of this proposiMankletow, Dears. 159.

tion, but a consideration of the prin2 Kiley, Rep. Stats. 167; ante, & 618, ciples of our unwritten law of crimes note.

leaves little room for any. See Crim. 3 Report of Judges, 3 Binn. 595, 621. Law, I, SS 546, 560-564, 581 et seq. In See also Anderson v. Com., 5 Rand. S. v. Sullivan, supra, Ruffin, J., said: 627, [16 Am. D. 776.]

“It is true that in a note to 2 Arch4 S. v. Findlay, 2 Bay, 418; S. C. nom. bold's Criminal Practice, 301, to which S. v. Findley, 1 Brev. 107; S. v. Tid. our attention was called by the attorwell, 5 Strob. 1.

ney-general, it is said that the abduo

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§ 630, Modern statutes — (Course of discussion).- The present statutes on this subject, in England and this country, are similar to the older. Yet they are numerous, and in some respects diverse. Assuming that the reader will have before him those of his own state, the author will here attempt some helpful expositions; which, however, can serve as safe guides only as examined in connection with the statutes.'

$ 631. Taking girl under sixteen out of custody.- The present English statute of 24 and 25 Vict., ch. 100, $ 55, in like terms with the earlier one of 9 Geo. 4, ch. 31, $ 20, and not greatly differing from 4 and 5 Phil. and M., ch. 8, makes it an indictable misdemeanor to take “any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her.” It is silent as to the purpose of the taking? A corresponding provision in Iowa has the words, " take or entice away an unmarried female under tion, or the enticing or carrying away of a prosecution at common law for of any person by force or fraud, is an such an offense is that against Lord indictable offense at common law; Gray, to be found in 9 (3) State Trials, and, as authority for the position, 127. [Grey's Case, 9 How. St. Tr. 127.] reference is made to 1 East, P. C. 458, Upon examining into that case we and 1 Russell on Crimes, 569. But find it to be, not an indictment for on looking to East we find no sort of abduction at all, but an information sanction given to such a position. lodged against that lord and five On the contrary, it is there said that others, by which they were charged by virtue of the general prohibitory with a conspiracy, the unlawful purclause of the statute of 4 & 5 Phil. & pose of which was to entice Lady M., ch. 8, an indictment, for the ab- Henrietta Berkley to quit her father's duction of a child will lie by the rule house and custody and live in secret of the common law, which rule, as adultery. And even in that case the plained, is that, where a thing is court never proceeded to a judg. prohibited to be done by a statute ment, but a nolle prosequi was enand a penalty is affixed to it by a tered after a verdict of guilty, as to separate and distinct clause, the pros all the defendants.” Pages 507, 508. ecutor is not bound to pursue the lat- 1 Concerning the Michigan statute, ter remedy, but may proceed under see P. v. Bristol, 23 Mich. 118. the prior general clause by indict- ? [See Reg. v. Webster, 15 Cox, C. ment for a misdemeanor. Not a C., for statute against knowingly sufsingle suggestion, however, is made fering a girl under sixteen years of that such indictment, in the absence age to be on premises for the pur of all statutory provision, can be pose of being carnally known. In maintained by force of the common that case the offense was held to law alone. And still less support is have been committed, although the given to the proposition by Russell. girl was prisoner's daughter, and the He says that the only reported case premises were his residence]




the age of fifteen years, from her father or mother, guardian, or other person having the legal charge of her person, without their consent.”1 Now,

§ 631a. Mistaking girl's age — (England).- The question whether or not, under these provisions, one who mistakenly believes the girl, in England, to be over sixteen, or, in Iowa, to be over fifteen, is punishable for the seduction, is similar to, yet not the same as, the one of mistaken death, discussed under the title “Polygamy.”? It was in England, “on two several occasions,” to copy the words of a former edition of this work,' “ ruled by single judges at jury trials, that, if the girl is of precocious growth and appears to be over sixteen, or if she represents herself to be so, this will not avail the prisoner in his defense. The reports of these cases do not show on what reasons the doctrine, assuming it to be sound, proceeds; but it occurs to the writer that there are sufficient reasons in the principles of the common law relating to the intent; though this question lies very near the line dividing two dissimilar classes of cases, and it is not quite certain, as we shall see, that other English judges would decide the question in the same way. It is a principle of the common law, in respect of crimes requiring only a general evil intent, and not a specific intent to do a particular forbidden thing, that, if a man contemplates one evil result, and his act unintended accomplishes another and a different one, he is punishable the same as though the act and intent had been the usual and natural accompaniments of each other. The intent was wrong and the act was wrong, an evil mind impelled the evil act, therefore he ought to be punished. And the doctrine goes to the extent that the intent need not be to do a thing which would be indictable if done; for,

many cases, not all, if what is meant is a mere civil or a mere moral wrong, yet an unintended wrong of the indictable sort follows, an indictment will lie. Now, in the cases under consideration, the man meant to commit the civil and moral wrong of taking away an infant girl from under lawful guardianship; and though he might have supposed he should succeed in dodg


1S. v. Ruhl, 8 Iowa, 447.

4 Reg. v. Robins, 1 Car. & K. 456; 2 Ante, S 596a.

Reg. v. Ollifer, 10 Cox, C. C. 402. 35 359 of the first edition, in a 5 Crim. Law, L, SS 323–334. chapter not retained in this revision.

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