Citation Numbers: 3 N.Y. Crim. 225, 44 N.Y. Sup. Ct. 190
Judges: Barker
Filed Date: 6/15/1885
Status: Precedential
Modified Date: 11/12/2024
The statute creating and defining the offense of which the defendant was convicted, is terse in expression as well as plain in its provisions. It declares that, “ A person who takes a female under the age of sixteen years for the purpose of prostitution, or sexual intercourse, or without the consent of her father, mother, guardian, or other person having legal charge of her person, for the purpose of marriage . . . is guilty of abduction, and punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.”
The only serious question presented is, as to what acts on the part of the accused person will constitute an unlawful and criminal taking within the sense and meaning of the statute.
We think it clear, in view of the nature of the wrong which the statute intended to punish, that it is not necessary to constitute the crime that the accused should in any case use any force or practice any fraud or deception, and that it is suffL
As the unlawful act mentioned in the statute constitutes the crime of abduction, we are aided in giving construction to the statute by the definition and meaning.of the phrase “ abduction,” as the same is used by jurists, law writers and lexicographers. Blackstone defines abduction to be the taking and carrying away of a child of a parent or the wife of a husband, either by fraud, persuasion or open violence. 3 Blackstone’s Commentaries, 139, 140. When the word is used as a law phrase, Webster adopts and approves of this definition. The English statute on the same subject, 9 Geo. 4, chap. 31, section 20, provided: “ If any person shall unlawfully take or cause to be taken, any unmarried female, being under the age of sixteen years, out of the possession and against the will of her father, or mother, or of any other person having the lawful charge of her person, shall be guilty of a misdemeanor.” The English courts, giving construction to this statute, have frequently held, that there need be no force, actual or constructive, and that slight enticement and persuasion, by which the female either accompanies or meets the abductor is sufficient. Regina v. Mankeltow, 6 Cox Crim. Cases, 143; Regina v. Timmins, 8 Id. 401. In Regina v. Olivier, 10 Cox Crim. Cases, 403, the court said that, if the prosecutrix acted under
Upon the trial of an indictment founded upon a section of the Revised Statutes, which enacts, that every person who shall take any woman unlawfully, against her will, with intent to compel her by force, menace or duress to marry him, or to marry any other person, or to be defiled, it was held that it was not necessary for the prosecution to show that actual physical violence had been used by the prisoner, to constitute a taking of the prosecutrix against her will within the meaning of the section, but that it was sufficient if she had been induced by deceit or false pretenses of the prisoner to go to the place; and proof that she had been induced to go there on the pretense that she could find employment as a servant, constituted a violation of the law, and brought the case within the sense and meaning of the statute, and justified a conviction. Beyer v. People, 86 N. Y. 869 ; Schnicker v. People, 88 N. Y. 194.
We have looked into the case of Kaufman v. People (11 Hun, 82), where the indictment was founded on chapter 105 of the laws of 1848, and we are unable to find any point adjudicated contrary to the views which we have expressed.
The charge of the court was fair and intelligent, clearly presenting for the consideration of the jury all the legal propositions involved, to which the defendant interposed no exceptions, and we are unable to discover any reason for reversing the judgment, after considering the legal questions presented.
The motion for a new trial, after the verdict was rendered, upon the ground that the jury were guilty of misbehavior, was properly denied, and in reaching a conclusion on this question, Ave follow the case of People v. Draper (1 N. Y. Crim. Rep. 138; 28 Hun, 1), which is a decision of this court.
The omission of the jury to render a verdict upon the second and third counts, is not such an irregularity as should lead to a new trial; for the omission to find one way or the other is equivalent to an acquittal on those counts, and a judgment as to them is a bar to a further prosecution. People v. Dowling, 84 N. Y. 478.
As judgment has been pronounced upon the conviction,
Judgment and order affirmed.
Smith, P. J., Haight and Bradley, JJT., concur.
Note.—A female under eighteen years of age, living with her father, but temporarily on a visit to her uncle, was taken from h.er uncle’s house by defendant under an arrangement previously made with her while with her father, and was by him defiled. Held, that the female was taken from her father’s possession. State v. Round (Mo. Sup. Ct.), 6 Crim. Law Mag. 836, where the principal cases on “ taking,” are given in a note.