Hemphill v. State , 127 Miss. 805 ( 1921 )

Anderson, J.,

delivered the opinion of the court.

Appellant, W. T. Hemphill, was indicted and convicted in the circuit court of Sunflower county of kidnapping one Sollie Overby, a non compos mentisand sentenced to the penitentiary for a term of five years, from which judgment he appeals to this court.

Appellant was appointed testamentary guardian of Sol-lie Overby by the will of his mother, and also by decree of the chancery court of Sunflower county, in which court said will had been duly probated. By the'terms of said will as well as by the decree of said court appellant was appointed guardian of both the person and estate of said non compos mentis. Appellant’s home was in Simpson county. After his appointment as such guardian he left his ward for a while in Sunflower county in the custody of the stepfather of the ward; later appellant returned from his home in Simpson county to Sunflower county, and against the will of said ward as well as that of his stepfather forcibly took the ward into his custody and carrier him to Simpson county. If appellant is guilty of kidnapping, these are the facts constituting the crime. '

The statute under which appellant was indicted is section 1249, Code of 1906 (section 979, Hemingway’s Code), which provides as follows:

“Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any.other, with intent to cause such person to be secretly confined or imprisoned in this state against his will, or to cause such othe- person to be sent out of this state against his will, or to cause such other person to be deprived of his liberty, or in any way held to service against his will, shall, upon conviction, be punished by imprisonment in the penitentiar-j not exceeding ten years; and upon the trial of any such offense the consent of the person so kidnapped or confined shall not be a defense, unless it appear that such consent was not extorted bjr threats or duress.”

Under the plain provisions of this statute there must be an unlawful, seizure and custody of the person charged to have been kidnapped and it is inconceivable that a guardian who is entitled to the custody of the person of his ward could be guilty of kidnapping such ward. His possession of him is lawful. It is argued that section 2424, Code of 1906 (section 1985, Hemingway’s Code), was violated by appellant in taking his ward from Sunflower to Simpson county without an order of the chancery court of the county of the guardianship authorizing such removal. That may be conceded, but it does not follow that appellant in ,so removing his ward was guilty of kidnapping. Criminal statutes, of course, are to be strictly construed. We know of no rule for the construction of such statutes which would authorize the reading of the said Code section above referred to into the kidnapping’ statute, thereby making it a part thereof. The statute defining and denouncing kidnapping is complete within itself. The purpose of the statute requiring an order of court authorizing a guardian to remove his ward and his personal property from the county in which the guardian was appointed to another county is for the civil protection of the person and property of the ward, and not for the purpose of making such removal an offense against the state.

We therefore conclude that, under the uncontrhdicted evidence in this case, the appellant was not guilty of the crime of which he ivas convicted.

Reversed, and appellant discharged.