defenses as well as in determining the credibility of witnesses, it is generally conceded that the court should be careful not to cast discredit upon the defense to the prejudice of the accused, and that the law does not necessarily discredit such defenses, but leaves the matter to the jury to determine as one of fact within their own province,177 and so where a witness has wilfully testified falsely as to some other material fact, while the court may instruct the jury that they may take this into consideration in weighing his testimony and disregard it all, still the law does not say that they must disregard it, and they should not be so instructed.178 31 Cent. L. J. 113, note; 14 Am. St. 41-44, note; 72 Am. Dec. 539549, note; as to alibi: Albin v. State, 63 Ind. 598; People v. Lattimore, 86 Cal. 403, 24 Pac. 1091; Simmons v. State, 61 Miss. 243; State v. Crowell, 149 Mo. 391, 50 S. W. 893, 73 Am. St. 402; State v. Chee Gong, 16 Ore. 534, 19 Pac. 607; as to insanity: People v. Methever, 132 Cal. 326, 64 Pac. 481; Aszman v. State, 123 Ind. 347, 24 N. E. 123, 8 L. R. A. 33. 178 Vol. II, § 956; note in 14 Am. St. 45; see also, Vol. I, § 296; Vol. II, §§ 961, 965, 966, 1047. CHAPTER CXXVIII. ABDUCTION. - Common-law rule changed. 2738. Kidnapping-Proof of intent. 2739. Kidnapping-Age and consent. Abduction. 2740. Definition and meaning. 2741. Proof of physical force not required. 2742. Taking away or detention Proof sufficient. Sec. 2747. Proof of detention against the 2748. Taking from the house without consent of parent or guardian. 2749. Taking from residence or custody-Proof. 2750. Taking from parents without consent. 2751. Taking against the will of the 2752. Age of female abducted. 2743. Proof of taking away-Suff- 2755. Presumption of previous ciency. 2744. Proof of intent-Sufficient. 2745. Abduction for prostitution or concubinage. chaste character. 2756. Proof of previous unchastity as a defense. § 2734. Scope and purpose.-Abduction is a crime defined and governed by statute in perhaps every state in the United States. These various statutes fully cover the common law definition and meaning of abduction, and usually include additional matter. In some cases and states the statutes include: (1) The unlawful taking of persons against their will, usually termed kidnapping; (2) the taking of females for the purpose of prostitution or concubinage; (3) the taking of females for the purpose of forcible marriage or defilement; (4) criminal seduction. It is not within the scope of this chapter to treat these several statutory crimes. But, disregarding the statutory variations, there are many rules and principles of evidence that are common even to these statutory offenses. It is the purpose of this chapter to give the general rules and principles of evidence relating more especially, if not exclusively, to the crime of abduction as generally known and understood by the term kidnapping and as applied to the taking of females. Kidnapping. § 2735. Definition and meaning.-As defined by Blackstone, kidnapping is the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another.1 It has been said to be a false imprisonment aggravated by conveying the imprisoned person to some other place. As defined by some courts it is said to be an aggravated species of false imprisonment.3 As defined by some statutes and followed by decisions of some courts, it is a forcible or fraudulent carrying away from his place of residence; or the arresting or imprisonment of any person with intent to have such person carried away from his residence; or secret confinement within the state; or detention against the will, all wilfully and without authority of law. It is now very generally conceded that the offense is complete without the sending the person away to another country. But it is held that the offense is greatly aggravated by sending the abducted person away from his own country into another.5 § 2736. Kidnapping-Proof.-To constitute the crime of kidnapping the proof must show two essential elements: (1) The conveying away against the will and without the consent of the injured person; (2) the absence of any legal warrant or lawful authority. The of 14 Blackstone Comm. 219; Black's Law Dict.-Kidnapping, 678; 2 Bouvier 91; 1 Russell Crimes (3rd ed.) 716; State v. Whaley, 2 Harr. (Del.) 538; Click v. State, 3 Tex. 282; People v. Camp, 139 N. Y. 87, 34 N. E. 755. 22 Bishop Cr. Law 750; Click v. State, 3 Tex. 282; Eberling v. State, 136 Ind. 117, 35 N. E. 1023. People v. Chu Quong, 15 Cal. 332; State v. Sutton, 116 Ind. 527, 19 N. E. 602; Boes v. State, 125 Ind. 205, 25 N. E. 218; Eberling v. State, 136 Ind. 117, 35 N. E. 1023; Commonwealth v. Blodgett, 12 Metc. (Mass.) 56; Dehn v. Mandeville, 68 Hun (N. Y.) 335, 22 N. Y. S. 984; Smith v. State, 63 Wis. 453, 23 N. W. 879. East Pl. Crown 430; Roscoe Cr. Ev. 465; State v. Rollins, 8 N. H. 550; Click v. State, 3 Tex. 282. "Click v. State, 3 Tex. 282; Castillo v. State, 29 Tex. App. 127, 14 fense may be established in either of two ways: (1) By proof showing that the person was forcibly or fraudulently carried off or decoyed from his place of residence without lawful authority; (2) by proof of an arrest or imprisonment of a person with the intention of carrying him, or having him carried away, in the absence of any lawful authority." § 2737. Kidnapping-Common law rule changed.-Under the common law definition of kidnapping in order to establish the crime the proof must show that the person charged either did remove or intended to remove the injured person beyond the state or country. But this common law crime has been generally modified by the statutes of the several states of this country by making the offense consist of either, (1) causing the person to be secretly confined or imprisoned in the state against his will; or (2) causing him to be sent out of the state against his will. To establish the crime under the first division of such a statute the proof must show that the confinement was secret within the state or that the intention existed of such secret confinement. Under such a statute where a person is seized and removed in broad daylight over public highways and railroads in the presence and view of many persons, and taken to an insane asylum and placed in the custody of public officials and in the presence of numerous physicians and other persons, it was held that there was no such secrecy about the transaction or imprisonment as to constitute the crime of kidnapping." § 2738. Kidnapping-Proof of intent.-The charge of sending a person out of the state against his will may be sustained by proof of the intention to do so and the seizure and transportation for that purpose, although the person is not actually conveyed out of the state. Nor is it absolutely necessary to prove directly that it was against the will of the person alleged to have been kidnapped. It is sufficient if the proof shows that fraud or deception was practiced upon the person in order to obtain such consent. If it is made to appear that the consent could not have been obtained in the absence of the fraud or deception the statutory requirement of being against the will is fully complied with. On this subject the Supreme Court of New S. W. 1011; Maner v. State, 8 Tex. State v. Kimmerling, 124 Ind. 382, 24 N. E. 722. $ People v. Camp, 139 N. Y. 87, 34 N. E. 755; People v. De Leon, 109 N. Y. 226, 16 N. E. 46, 4 Am. St. 447, note; Smith v. State, 63 Wis. 453, 23 N. W. 879. York say: "The consent of the prosecutrix having been procured by fraud, was as if no consent had been given, and the fraud being a part of the original scheme, the intent of the defendant was to cause the prosecutrix to be sent out of the state against her will." And a person may be guilty of kidnapping under such a statute where it is made to appear that he intended to take or send by a boat to a certain foreign country the person alleged to have been kidnapped, although it subsequently appeared that the vessel was not bound for that country at all. Thus, where a person procured the intoxication of a sailor and caused him to be taken on board a vessel without his consent, and with the intention that he should be taken out of the state, it was held that the offense was complete although the vessel was not in fact intended to leave the state.10 But in case of stealing a child with the intent unlawfully to detain or conceal it from its parents or other proper person, the proof must show the existence of the intent.11 § 2739. Kidnapping-Age and consent.-Under most statutory definitions it becomes essential to prove the age of the injured person. The distinction made by these statutes is that under a certain age the offense is complete regardless of the consent of the person abducted. But over the stated age it is essential to prove that the abduction was against the will of the person. So, too, the question of age is essential in the use of force. Under many of these statutes if the person is under a stated age, it is not necessary to prove the use of either force or violence. But over such age the offense is not complete without proving that force was used.12 The evidence must bring the defendant within all the material words of the statute, as nothing can be taken by intendment; accordingly the proof must show that the person abducted was within the statutory age and that she was a maid or woman-child, as a description by name is not sufficient. 18 • People v. De Leon, 109 N. Y. 226, 16 N. E. 46, 4 Am. St. 447; Beyer v. People, 86 N. Y. 369; Reg. v. Hopkins, Car. & M. 254. 10 Hadden v. People, 25 N. Y. 373. "Mayo v. State, 43 Ohio St. 567, 3 N. E. 712. "State v. Rollins, 8 N. H. 550; State v. Farrar, 41 N. H. 53; Moody v. People, 20 Ill. 315; Commonwealth V. Nickerson, 5 Allen VOL. 4 ELLIOTT Ev.-4 (Mass.) 518; State v. Sullivan, 85 N. Car. 507; Castillo v. State, 29 Tex. App. 127, 14 S. W. 1011; Anderson v. Commonwealth, 5 Rand. (Va.) 627; United States v. Aucarola, 17 Blatch. (U. S.) 423; Commonwealth v. Robinson, Thatcher Cr. Cas. (Mass.) 488; 2 Bishop Cr. Law 751. 13 State v. O'Bannon, 1 Bail. (S. Car.) 144. |