§ 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.1 § 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 any person by force or fraud, is an indictable offense at common law; and, as authority for the position, reference is made to 1 East, P. C. 458, and 1 Russell on Crimes, 569. But on looking to East we find no sort of sanction given to such a position. On the contrary, it is there said that by virtue of the general prohibitory clause of the statute of 4 & 5 Phil. & M., ch. 8, an indictment, for the abduction of a child will lie by the rule of the common law, which rule, as plained, is that, where a thing is prohibited to be done by a statute and a penalty is affixed to it by a separate and distinct clause, the prosecutor is not bound to pursue the lat-· ter remedy, but may proceed under the prior general clause by indictment for a misdemeanor. Not a single suggestion, however, is made that such indictment, in the absence of all statutory provision, can be maintained by force of the common law alone. And still less support is given to the proposition by Russell. He says that the only reported case of a prosecution at common law for such an offense is that against Lord Gray, to be found in 9 (3) State Trials, 127. [Grey's Case, 9 How. St. Tr. 127.] Upon examining into that case we find it to be, not an indictment for abduction at all, but an information lodged against that lord and five others, by which they were charged with a conspiracy, the unlawful purpose of which was to entice Lady Henrietta Berkley to quit her father's house and custody and live in secret adultery. And even in that case the court never proceeded to a judg ment, but a nolle prosequi was entered after a verdict of guilty, as to all the defendants." Pages 507, 508. 1 Concerning the Michigan statute, see P. v. Bristol, 23 Mich. 118. 2[See Reg. v. Webster, 15 Cox, C. C., for statute against knowingly suffering a girl under sixteen years of age to be on premises for the pur pose of being carnally known. In that case the offense was held to have been committed, although the girl was prisoner's daughter, and the 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." 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,"3 "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, in 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. 2 Ante, § 596a. 3 359 of the first edition, in a chapter not retained in this revision. 4 Reg. v. Robins, 1 Car. & K. 456; Reg. v. Ollifer, 10 Cox, C. C. 402. 5 Crim. Law, L, §§ 323–334. ing the law, it is no stretch of legal doctrine to hold him to be guilty. The intent which impels the act is quite different from that which impels a man to sell what he has every reason to believe, and does believe, to be pure milk, or what on good ground he believes to be a harmless and unintoxicating beverage, or to enter into matrimony with one whom he thus believes to be lawfully entitled to marry." This extract from the author's previous edition was written and printed in the closing part of the year 1872. Early in 1875, a jury having found an indicted person guilty, with the qualification, if material in law, that on reasonable grounds he believed the girl to be over sixteen years of age, the question was submitted to the Court for Crown Cases Reserved. So difficult did it there appear, that it was referred to all the common-law judges of England, and sixteen heard and passed upon it. Fifteen were of the opinion above indicated and one dissented.1 § 631b. Something of law books.-This question is, by the writer, brought forward in this way for the double purpose of explaining the doctrine and explaining something regarding the sort of legal treatise to which the present series of volumes belongs. Contrary to the views of the class of lawyers who, discerning no difference between adjudications in accord and in conflict with just legal doctrine, nor even taking cognizance of legal doctrine as existing otherwise than in the mere words of judges, deny the value of books of a higher order than digests, and relegate all legal questions to one flat, these volumes present, to the extent to which the author is able within the space at command, legal things as they truly are. What is plain is set down as such. What stands on the border lines of doctrines is so presented. not generally disturbed. What is adjudged past recall is And, to some extent, within what seems practical, where it is certain that a lawyer can change 1 Reg. v. Prince, Law R. 2 C. C. 154, 13 Cox, C. C. 138. [The judges, if rightly interpreted in Reg. v. Tolson, 23 Q. B. D. 168, did not put this decision on its better and firmer ground, that stated in the text.] See also Reg. v. Booth, 12 Cox, C. C. 231; Reg. v. Mycock, 12 Cox, C. C. 28. [In Reg. v. Packer, 16 Cox, C. C. 57, where prisoner was charged with having abducted a girl under eighteen years of age, it was held a sufficient defense if at the moment of taking her out of custody he had reasonable cause to believe that she was of the age of eighteen years, although he did not inquire as to her age until after he had taken her out of such lawful custody, but before abduction was complete.] the course of decision for the better if he will take the pains, and exercise skill enough to make the court understand the question, the path for him is indicated. But, on the other hand, it is not deemed the author's duty to impart either the disposition or the industry, or yet the legal capacity, to counsel or to court. § 632. Mistaking girl's age, continued -(Iowa).-The doctrine reached in England had already been held in Iowa. It was there adjudged inadmissible for the defendant to show, in answer to the charge, that, before the enticement, the girl told him she was over fifteen years of age. "It is not," said Wright, C. J., "like the case stated by appellant, and found in the books, of a married man, through a mistake of the person, having intercourse with a woman whom he supposed to be his wife, when she was not. In such a case there is no offense, for none was intended either in law or morals. In the case at bar, however, if the defendant enticed the female away for the purpose of defilement or prostitution, there existed a criminal or wrongful intent, even though she was over the age of fif teen. . . The wrongful intent to do the one act is only transposed to the other. And though the wrong intended is not indictable, the defendant would still be liable if the wrong done is so. 1 Bishop, Crim. Law (1st ed.), §§ 247, 249, 252, 254, note 4. In this last section the rule is thus briefly stated: "The wrong intended but not dore, and the wrong done but not intended, coalesce, and together.constitute the same offense, not always in the same degree, as if the prisoner had intended the thing unintentionally done."" Still, 1 --- § 632a. Mistake indicating innocence. In this offense, the same as in any other, there may be a mistake of fact of a sort showing the accused to be, as to the intent, blameless; and then the excuse will be available in law. For example, under the English enactment, the purpose of carnal defilement is not essential to guilt; thereupon, in the language of Bramwell, B., "if the taker believed he had the father's consent, though wrongly, he would have no mens rea; so, if he did not know she was in any one's possession, nor in the care or charge of 1S. v. Ruhl, 8 Iowa, 447, 450, 451. [See P. v. Dolan, 96 Cal. 315, 31 Pac. R. 107; S. v. Johnson, 115 Mo. 480, 22 S. W. R. 463; Riley v. S. (Miss.), 18 S. any one [or, more accurately, if, after due inquiry, he in good faith believed her not to be]. In those cases, he would So, under not know he was doing an act wrong in itself." the same statute, where one had promised a father on his deathbed to take care of an infant daughter, and after the father's death took her out of lawful custody, Cockburn, C. J., "told the jury that it was clear the prisoner had no right to act as he had done in taking the child out of Mrs. Barnes' custody. But inasmuch as no improper motive was suggested on the part of the prosecution, it might very well be concluded that the prisoner wished the child to live with him, and that he meant to discharge the promise which he alleged he had made to her father, and that he did not suppose he was breaking the law when he took the child away. This being a criminal prosecution, if the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to an acquittal upon this charge." And he was acquitted.2 § 633. From whom taken, etc.-The several statutory words should be considered. Thus,— "Father."-A bastard being, for most purposes, not recognized in the law as the child of its male parent,' the word "father" is not in all statutes interpreted to include such parent of a bastard. But in some it is. And though, between the two parents of such a child, the mother has the better claim to its custody, yet the natural father, in the actual custody of an illegitimate girl, is a "father" within the statute now in contemplation, making the taking of her from his custody indictable.' 1 Reg. v. Prince (stated ante, § 632), Law R. 2 C. C. 154, 175. 2 Reg. v. Tinkler, 1 Fost. & F. 513. The case of Reg v. Hilbert, Law R. 1 C. C. 184, was decided wrongly, if it proceeded on the question now under discussion. Yet evidently the ground of the decision was that the girl was not taken out of the father's possession. Compare with Reg. v. Green, 3 Fost. & F. 274, therein cited. 31 Bl. Com. 459; Dorin v. Dorin, Law R. 7 H. L. 568; In re Ayles' Trusts, 1 Ch. D. 282; Dickinson's Appeal, 42 Conn. 491, [19 Am. R. 553.] 4 Hard's Case, 2 Salk. 427. 5 Rex v. Hodnett, 1 T. R. 96, 98; 1 Bishop, Mar., Div. & S., § 745. 62 Bishop, Mar., Div. & S., § 1172; Ex parte Knee, 1 New R. 148. 7 Rex v. Cornforth, 2 Stra. 1162; Rex v. Sweeting, 1 East, P. C. 457. |