Mayo v. State , 43 Ohio St. (N.S.) 567 ( 1885 )

Bx the Court.

The Revised Statutes provides: “ Sec. 6825. Whoever. leads, takes, carries, decoys, or entices away a child under the age of twelve years, with intent unlawfully to detain or conceal such child from its parent, guardian, or other person having the lawful charge or custody thereof, and whoever, with the intent aforesaid, knowingly harbors or conceals any such child so led, taken, carried, decoyed, or enticed away, shall be imprisoned in the penitentiary not more than twenty years nor less than one year.”

The gist of the crime of child-stealing under this section is the “ intent unlawfully to detain or conceal ” the child from its parent or person entitled to its custody. But the court instructed the jury that if the child was taken away from its mother without her consent and against her will, such taking was unlawful, and any detention thereafter completed the crime. This instruction was misleading. Plainly, the intent unlawfully to detain must be present at the time of the taking. A child might be taken from its home without the consent, and even against the will, of its parent, without intending any detention or concealment, such as for the purpose of taking it to a place of amusement, and under the charge, any detention, however brief or accidental, would constitute the offense. The tendency of the charge was to lead the jury to eliminate from their minds all considerations with respect to the motive and intent of the accused at the time of the taking, and to look to the naked faets as to whether the child was taken without the consent and against the will of the mother, and was followed by any detention.

The crime of child-stealing is one of the most cruel and heartless in the calendar. It strikes a blow at the tenderest and most sacred affection of the human breast, and is usually resorted to for purposes of revenge or extortion. It is never the outgrowth of kindly and charitable feelings, such as the evidence tended to show animated Mayo in his effort to help his sister-in-law and her family in their struggle for existence.

By the Jewish and the civil law, kidnaping was punishable with death, and by the common law with fine, imprisonment, and the pillory.

Fortunately, child-stealing is now an offense of rare oceurrenee, the records of the state showing but a single conviction in ten years.

Where the crime is proven in all its elements, punishment should be exemplary, but the intent unlawfully to detain or conceal is an essential element, and must accompany the act of taking.

Judgment reversed.