Burns v. Commonwealth , 129 Pa. 138 ( 1889 )

Opinion,

Me. Justice McCollum :

This case grows out of quarrels between A. B. Gregory and his wife, Delilah, which resulted in their separation in November last, and a contest for the possession of their only child, Maud, aged two years and four months. When Mrs. Gregory separated from her husband she took Maud with her, but upon his representation that he was sick and desired to see his child, she returned with it to his home. Her departure was on the 19th, and her return on the 27th, of November. There was no reconciliation between the husband and the wife, and no effort by either to effect one. The visit of the wife was intended as temporary, and was induced by the representations mentioned. There is reason to believe that sickness was feigned by the husband as part of a scheme or device to get possession of his child. After the child was returned to him, he made known to the mother his purpose to retain possession of it, and to prevent her from again taking it away. From the 27th of November to the 14th of December, when he removed from the state, and carried the child away with him, he kept exclusive possession and control of it, and denied the mother access to it. It is alleged that his sister, Nettie Burns, and her husband, David Burns, aided and abetted him in getting and keeping possession of the child, and concealing it from its mother, and for this offence they were indicted, convicted, and sentenced. The learned judge told the jury that Gregory was guilty of the offence described in the indictment, and that the only question for them was whether Burns and his wife assisted him in taking and keeping the child from its mother. This instruction invites the criticism that it relieved the jury from any consideration of' the essential ingredient of the crime, viz., the motive and intent of Gregory in securing and retaining possession of his child, and of his sister and her husband in aiding him; and it authorized a conviction of the defendants without a finding by the jury that they acted maliciously. But as this instruction is not complained of here, we need not consider it further.

The sole contention before us is upon the construction of the ninety-fourth section of the act of March 31, 1860, P. L. 405; and it is conceded that if Gregory in getting and keeping possession of his child is not condemned by it, those who aided him are not. The section referred to is as follows:

“ If any person shall maliciously, either by force or fraud, lead, take, or carry away any child under the age of ten years, with the intent to deprive its parent or parents, or any other person having the lawful charge or cari^of such child, of the possession of such child, by concealing and detaining such child from such parent or parents, or other person or persons having the lawful charge or care of it, or with intent to steal any article of apparel or ornament, or other thing of value or use, upon or about the person of such child, to whomsoever such article may belong, or shall receive and harbor, with any such intent as aforesaid, any such child, knowing the same to have been so, by force or fraud, led, taken, or carried, or decoyed or enticed away, as aforesaid, every such person shall be guilty of a misdemeanor, and upon conviction thereof be sentenced to pay a fine not exceeding two thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding seven years: provided, always, that no person who shall have claimed to be the father of any illegitimate child, or to have any legal right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of getting possession of such child, out of the possession of the mother or other person having lawful charge thereof.”

It is not claimed that the action of Gregory in securing and maintaining possession of his child is a crime at common law, but the commonwealth insists that the act we have quoted is broad enough, and was intended, to include the case of one parent maliciously taking and carrying away his or her child, under the age of 10 years, with the intent to deprive the other parent of the possession of such child. In defence and support of this view it is urged that “ one of the objects aimed at by the passage of this act was the prevention of quarrels and breaches of the peace over the possession of children.” But the report on the Penal Code, page 26, informs us that “ the offence provided against in this section is that known and punished by the common law as kidnapping. The object of this section is to extend the protection of the law, not only to cases where the intention is to detain the child kidnapped, but to steal any article of apparel or ornament on or about the person of such child.”

The claim of the commonwealth is that the mother was the lawful custodian of this child, and that the father, in taking and detaining it from her in the manner described, became a kidnapper, and subject to the penalties of the act referred to. When parents quarrel and separate, each naturally desires and claims possession of their children, but there is no iron-clad rule which secures to either the sole custody of them. In determining to whom the custody shall be awarded in such cases, the welfare of the child is consulted, and is ordinarily the controlling consideration. An assertion of this claim, without the aid of legal process, does not make the claimant a criminal, unless it be accompanied by a breach of the peace. The father who takes and withholds his child from the wife and mother, who, with or without cause, has abandoned his home, does not thereby become a kidnapper. The statute has no application to contests between parents for the possession of their children. It was enacted to protect parental and other lawful custody of children against the greed and malice of the kidnapper; not to punish their natural guardian for asserting his claim to the possession and control of them. The father is the head of the-family, and charged with the duty of maintaining it. He is the natural guardian of his children, and entitled to the custody of them. This right of custody is not absolute; it may be restrained or qualified in the interest of the child; but until he voluntarily surrenders it, or it is suspended by the order of a court of competent jurisdiction, his possession of his child is neither criminal nor unlawful. An abuse of the right may make such an order appropriate or (necessary, but it cannot make him a kidnapper.

It is said that the language of the statute is comprehensive enough to include parents, and this is true; but it is also true that it must be read and construed in the light of its purpose. It was designed to prevent and to punish kidnapping, and not . to prohibit one parent from asserting a claim to the possession of his or her child against the will, and to the exclusion, of the other. It has no relation to such disputes, and makes no change in the laws by which they are regulated and settled. That the statute was not intended to apply to a case of this kind is manifest from its proviso, which declares, in substance, that the putative father of a bastard child shall not be liable to prosecution under it for taking such child out of the possession of the mother or other person having the lawful charge of it. As the mother of such a child has the paramount right to the custody of it, the proviso was deemed necessary to prevent the possible application of the statute to a case not within its intendment, but it never entered the legislative mind that the parent of a legitimate child could be held as a kidnapper for taking and keeping possession of it.

The judgment is reversed, and the defendants, David Burns and Nettie Burns, are discharged from their recognizance in this case.