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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.
$ 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. What is adjudged past recall is not generally disturbed. 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, abducted a girl under eighteen years 13 Cox, C. C. 138. [The judges, if of age, it was held a sufficient derightly interpreted in Reg. v. Tol- fense if at the moment of taking her son, 23 Q. B. D. 168, did not put this out of custody he had reasonable decision on its better and firmer cause to believe that she was of the ground, that stated in the text.] See age of eighteen years, although he also Reg. v. Booth, 12 Cox, C. C. 231; did not inquire as to her age until Reg. v. Mycock, 12 Cox, C. C. 28. [In after he had taken her out of such Reg. v. Packer, 16 Cox, C. C. 57, where lawful custody, but before abducprisoner was charged with having tion 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 coun-sel or to court. $ 632. Mistaking girl's age, continued — (Iowa).—The doc
trine 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 fifteen. · 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.), SS 247, 249, 252, 254, note 4. In this last section the rule is thus briefly stated: “The wrong intended but not done, 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,
$ 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
18. v. Ruhl, 8 Iowa, 447, 450, 451. S. W. R. 463; Riley v. S. (Miss.), 18 S. [See P. v. Dolan, 96 Cal. 315, 31 Pac. R. 117. But see Mason v. S., 29 Tex R. 107; S. v. Johnson, 115 Mo. 480, 22 Ap. 24, 14 S. W. R. 71.]
any one (or, more accurately, if, after due inquiry, he in good faith believed her not to be]. In those cases,
he would not know he was doing an act wrong in itself.”! So, under 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.?
8 633. From whom taken, etc.—The several statutory words should be considered. Thus,
“Father."— A bastard being, for most purposes, not recog. nized 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, S 632), 31 Bl. Com. 459; Dorin v. Dorin, Law R. 2 C. C. 154, 175.
Law R 7 H. L. 568; In re Ayles' Reg. v. Tinkler, 1 Fost. & F. 513. Trusts, 1 Ch. D. 282; Dickinson's ApThe case of Reg v. Hilbert, Law R. peal, 42 Conn. 491, [19 Am. R. 553.] 1 C. C. 184, was decided wrongly, if 4 Hard's Case, 2 Salk. 427. it proceeded on the question now 6 Rex v. Hodnett, 1 T. R. 96, 98; 1 under discussion. Yet evidently the Bishop, Mar., Div. & S., $ 745. ground of the decision was that the 6 2 Bishop, Mar., Div. & S., § 1172; girl was not taken out of the father's Ex parte Knee, 1 New R. 148. possession. Compare with Reg. v. 7 Rex v. Cornforth, 2 Stra. 1162; Green, 3 Fost. & F. 274, therein cited. Rex v. Sweeting, 1 East, P. C. 457.
“Other person.”—The words “or other persons having the legal charge of her person ” in the Iowa statute do not require the one in possession to have the full measure of a parent's authority over the girl, or to have been formally appointed her guardian. Yet, on the other hand, a mere temporary charge, like that of a schoolmistress or governess, is not sufficient. If, for example, the parents are dead, those with whom she resides as a member of the family, wholly under their care and protection, have “the legal charge of her person ” within the meaning of this statute, though holding no appointment of guardianship. Within this general sort of doctrine are the not very distinct English cases.?
$ 634. The taking—(Consent of girl-Force-Enticement). Plainly, under the statute now in contemplation, the girl's consent affords no justification for the taking;: though, at one time in England, there seems to have been doubt on this question.' There need be no force, actual or constructive. Yet there must be an enticement;& so that her voluntary going away, without prompting from the accused, is no offense, though he receives her. Yet nothing more than enticement is required.
18. v. Ruhl, 8 Iowa, 447.
* Reg. v. Mankletow, Dears. 159, 6 2 Reg. v. Burrell, Leigh & C. 354; Cox, C. C. 143; Reg. v. Biswell, 2 Cox, Reg. v. Tinkler, 1 Fost. & F. 513; Reg. C. C. 279; Reg. v. Handley, 1 Fost. & v. Meadows, 1 Car. & K. 399. Arch- F. 648; Reg. v. Baillie, 8 Cox, C. C. bold observes: “Upon the death of 238; Reg. v. Timmins, Bell, C. C. 276, the father the mother retains her au. 8 Cox, C. C. 401; Reg. v. Robb, 4 Fost. thority, though she marry again, un- & F. 59. less the father has disposed of the 5 Reg. v. Mankletow, supra; Reg. v. custody of his child to others; the Frazer, 8 Cox, C. C. 446; [Lampton v. assent of the second husband is not S. (Miss.), 11 S. R. 656; S. v. Stone, 106 material. Ratcliffe's Case, 3 Co. 37a, Mo. 1, 16 S. W. R. 890; P. v. Seeley, 39. . And it is not clear from 37 Hun, 190.] the statute whether it would be an 6 Lewis v. P., 37 Mich. 518; S. v. offense to take away a girl against Crawford, 34 Iowa, 40; Wilson v. S., the consent of her parent, but by the 58 Ga. 328; (S. v. Bussey, 58 Kan. 679, consent of one who has the tempo 50 Pac. R. 891; S. v. Johnson, 115 Mo. rary care of her. 1 East, P. C. 457.” 480, 22 S. W. R. 463.] Archb. Crim. PL & Ev. (10th Lond. 7 Reg. v. Olifier, 10 Cox, C. C. 402. ed.) 477, 478.
And see and compare Reg. v. Kipps, 3 [Thwett v. S., 74 Ga. 821; S. v. 4 Cox, C. C. 167; Reg. v. Biswell, 2 Stone, 106 Mo. 1, 16 S. W. R. 890; S. Cox, C. C. 279; Reg. v. Handley, 1 V. Bobbst, 131 Mo. 328, 32 S. W. R. Fost. & F. 648. 1149; Scruggs v. S., 90 Tenn 81, 15 S. 8 But see P. v. Parshall, 6 Park, Cr. W. R. 1074; S. v. Bussey, 58 Kan. 679, 129. 50 Pac. R. 891.)
Therefore to entice, on one occasion, a girl who goes away on another, and then to receive her, is to commit this offense, though the person doing it does not approve of her going at the time she does."
$ 635. Consent of parent or guardian.— By the terms of these statutes, the consent of the person having the custody of thu girl justifies the taking. But it was deemed, on an English trial, and it would appear correctly, that a consent obtained by fraud is, for this purpose, equivalent to none. And Archbold
? adds that “it seems to be doubtful whether, if the parent once consent, but afterwards dissent, a subsequent taking away can be said to be against the will of the parent.” 3 On principle, a parent, like any other person, has his day for repentance; and, if he revokes the authority before the taking, the case stands as though it had not been given. Parents who had encouraged the girl in a lax course of life, so that they might have foreseen what happened, were in one case deemed to have thereby con. sented.
$ 636, “ Possession" of parent or guardian.— If a girl, by a previous arrangement with a man, leaves her father's house and then joins him;: or, a fortiori, if he puts up a ladder to the window, and she comes down on it and goes away with him, this is a taking of her out of his possession. And the result should, in reason, be deemed the same, if, on her daily route to school, he persuades her to go away with him. Surely a father, to protect his child, ought not to be obliged to keep his arms clasped constantly around her waist. Unhappily, there seems
1 Reg. v. Robb, 4 Fost. & F. 59; Reg. ruled in Reg. v. Bellis, 17 Cox, C. C v. Olifier, supra. (A dictum in Reg. 660.] v. Barrett, 15 Cox, C. C. 658, held that 2 Reg. v, Hopkins, Car. & M. 254 to support an indictment under 24 [See Garrett v. S., 74 Ga. 191.] & 25 Vict., ch. 100, 56, for unlaw- 3 Archb. Crim. Pl. & Ev. (1001 fully and fraudulently taking away Lond. ed.) 478, referring to Calthrop a child under the age of fourteen v. Axtel, 3 Mod. 168; 1 East, P. C. 457. years, etc., with intent to deprive 4 Reg. v. Primelt, 1 Fost. & F. 50. the parent of the possession of such 5 Reg. v. Mankletow, Dears. 159, 6 child, etc., evidence of fraud exer- Cox, C. C. 143; (S. v. Chisenhall, 106 cised upon the child's guardian was N. C. 676, 11 S. E. R. 518. See S. r. insufficient, but that fraud must be Round, 82 Mo. 679; P. v. Cook, 61 Cal. shown to have been exercised on the 478; S. v. Gordon, 46 N. J. L. 432.] child herself. That dictum was over- 6 Reg. v. Robins, 1 Car. & K. 456.