State v. Farrar , 41 N.H. 53 ( 1860 )

Bellows, J.

The offence charged in the indictment was an offence at common law, and also by the law of New-Hampshire before the Revised Statutes. In State v. Rollins, 8 N. H. 550, it was held that an indictment at common law may be maintained in this State for an assault, for false imprisonment, and for kidnapping. And it was held that to constitute the offence of kidnapping a child under ten years of age, actual force and violence is not necessary, nor transportation to a foreign country.

But the statute under which the indictment in the case before us is framed, includes in the offence of kidnapping the intent to carry the person seized out of the State. In this case the child, which was about four years old, was taken from its lawful custody with its mother, with a strong hand, and actually carried out of the State. The custody of the child having been, by a decree of this court, assigned. to the mother, that custody must be regarded, for all purposes, as lawful, even as against the father; and he has no “lawful authority” to take the child from her. If- he does so against her will, for the purpose of carrying it out of the State, it comes within the statute. The right of the father over the child was gone by the force of the decree, as much as his right over its mother, his former wife ; and the purpose for which he carried it away, whether to subject it to slavery or merely to his parental control, could not affect the question of guilty or not guilty, although it might affect the extent of the punishment. Beside the authorities cited by the counsel for the State, are State v. Rollins, 8 N. H. 550; Ros, on Cr. Ev. 465, 2 East’s Crown Law, 429.

But it is said by the respondent that a child of such tender age could have no will or capacity to resist the forcible seizure, confinement and removal from the State, and that therefore she was not within the protection of either clause of the statute. We, however, cannot assent to such position. On the contrary, laws of this character seem to have originated in the especial purpose of furnishing protection to children. And we are disposed to hold that the child was incapable of consent to the seizure and removal, and that,, being taken from its lawful custody, it must be deemed to have been taken without its consent as matter of law. It was so held in the case of a child ten years of age in State v. Rollins, 8 N. H. 565.

In the case of children of that age, when they are in the place of their lawful custody they are deemed to be free, but when taken away against the will of their rightful guardians, they are justly regarded as under illegal restraint. So it is held in proceedings on habeas corpus, and such is the law, we think, that governs this case.

The proof that the child had affection for the father was, .therefore, rightfully rejected, as it could have no legitimate beai'ing upon the issue of guilty or not. guilty.

If it were essential that the indictment should have the signature of the prosecuting officer, still we should not be inclined to hold that in affixing the signature of the solicitor, the absence of the attorney-general must necessarily be suggested. Indeed that is a matter of which the court would judicially take notice, as it was distinctly held in the celebrated case of Rex v. Wilkes, 4 Burr. 2527-2577. That was the case of an infoi’mation by the solicitor-general. It was held that it was not necessary to aver a vacancy in the office of attorney-general. Lord Mansfield says, “ that the attorney-general is a great officer of the Jaw and of this court, and the court take notice when the office is vacant, and by whom it is filled when full. They give credit to the solicitor-general when he sues for the king, that he has authority.” So in this case, the court may properly take notice of the absence of the attorney-general, and that the solicitor acts in his place, especially when the court is called upon to certify that fact.

We do not, however, hold the signature of the prosecuting officer to be indispensable, although such is the usual and proper practice. At common law it was not required, neither was he accustomed to attend the investigations of the grand jury at all, and no change as to his signature is made by statute. Anderson v. State, 5 Pike 444; McGregg v. State, 4 Blackf. 101; Thomas v. State, 6 Mis. 457; Keithler v. State, 10 S. & M. 192.

There must, therefore, be

Judgment on the verdict.