Where a person within the prohibited age has been abducted it is no defense to show that the defendant believed or had reason to believe that the person was over the statutory age.1*

Abduction.

§ 2740. Definition and meaning.-Abduction as distinct from kidnapping has been defined as: "The unlawful taking or detention of any female for the purpose of marriage, concubinage or prostitution."15 The Supreme Court of North Carolina approved Webster's definition as follows: "The crime is defined in the statute by the term abduction, which is a term of well-known signification and means in law 'the taking and carrying away of a child, a ward, a wife, etc., either by fraud, persuasion or open violence." "16 Under the English statute on this subject, from which most of the American statutes were framed, the offense consisted of the taking: (1) of any woman having certain property or expectancies, to be married or defiled; (2) of such a woman being under the age of twenty-one years out of the possession of the person having the lawful custody of her; (3) of any woman of any age by force, with intent to cause her to be married or defiled; (4) of any unmarried girl under the age of sixteen years out of possession of the person having lawful custody of her; (5) of any child under the age of fourteen years with intent to deprive its lawful guardian of its custody.

§ 2741. Proof of physical force not required.-Many of the statutes defining abduction provide that the act must be forcible. But the decisions are practically unanimous in holding that it is not necessary to prove actual physical violence in order to establish the forcible taking contemplated by such statutes. The Supreme Court of Illinois approved an instruction on this subject as follows: "To constitute the forcible abduction or stealing of a person within the meaning of the statute, it is not necessary that actual physical force or violence be used upon the person kidnapped. But it will be sufficient, if, to accomplish the removal, the mind of the person was operated upon by the defendants, by falsely exciting the fears, by threats,

14 People v. Fowler, 88 Cal. 136, 25 Pac. 1110; State v. Johnson, 115 Mo. 480, 22 S. W. 463.

15 Black's Law Dict. 6.

10 State v. George, 93 N. Car. 567;

Carpenter v. People, 8 Barb. (N. Y.) 603; State v. Chisenhall, 106 N. Car. 676, 11 S. E. 518; Humphrey v. Pope, 122 Cal. 253, 54 Pac. 847.

fraud or other unlawful or undue influence, amounting substantially to a coercion of the will, so that, if such means had not been resorted to or employed, it would have required force to effect the removal." In commenting on this instruction the court further said: "The statute defines kidnapping to be the forcible abduction or stealing away of a man, woman or child from his or her own country, and sending or taking him or her into another. While the letter of the statute requires the employment of force to complete his crime, it will undoubtedly be admitted by all that physical force and violence are not necessary to its completion. Such a literal construction would render this statutory provision entirely useless. The crime is more frequently committed by threats and menaces than by the employment of actual physical force and violence. If the crime may be committed without actual violence, by menace, it would seem that any threats, fraud or appeal to the fears of the individual, which subject the will of the person abducted and places such person as fully under the control of the other as if actual force were employed, would make the offense as complete as by the use of force and violence."17

§ 2742. Taking away or detention-Proof sufficient. The prime essential of the crime is the taking away from the residence or other proper place with an unlawful purpose. What constitutes the taking away is usually not defined by statute; however the statutes sometimes use such words as persuade, entice, inveigle or induce. As previously seen it is not necessary that the proof show the use of actual physical force. It has been held that a defendant may be guilty of such a charge even when he was not present at the time of the taking. And if it is shown that it was by his inducement or persuasion, or that it was through the influence exerted or the inducement held out and the means for leaving provided by the defendant, it is gener

"Moody v. People, 20 Ill. 315; State v. Bussey, 58 Kans. 679, 50 Pac. 891; People v. Carrier, 46 Mich. 442, 9 N. W. 487; State v. Keith, 47 Minn. 559, 50 N. W. 691; State v. Jamison, 38 Minn. 21, 35 N. W. 712; Lampton v. State, (Miss.) 11 So. 656; State v. Johnson, 115 Mo. 480. 22 S. W. 463; State v. Chisenhall,

106 N. Car. 676, 11 S. E. 518; Beyer v. People, 86 N. Y. 369; Schnicker v. People, 88 N. Y. 192; Eberling v. State, 136 Ind. 117, 35 N. E. 1023; People v. Seeley, 37 Hun (N. Y.) 190; People v. De Leon, 109 N. Y. 226, 16 N. E. 46, 4 Am. St. 447, note; Reg. v. Handley, 1 Fos. & Fin. 648.

ally sufficient. As stated by one court: "It is immaterial whether he took her by the hand and led her away, sent a special conveyance to carry her from her parents, or planned and provided that she should go in a public conveyance. It matters not what agency he provided or employed to take her away; it is enough that he caused or procured her to be taken against the wish of her parents, and that it was done for the illicit purpose."18 The holdings in some jurisdictions indicate that the statutory taking or detention may be purely fictitious.19

§ 2743. Proof of taking away-Sufficiency.-To establish the crime of abduction there must be proof of a taking away or out of the custody or possession of another. However, very slight evidence may be sufficient to establish this fact, but it is necessary that there be some positive act to get the female away from the person having the legal charge of her. It is not necessary to establish a fixed distance, nor is it necessary to show that she was kept permanently away from her home or place of residence. Nor is the proof of an intention to keep her permanently away from home essential to the existence of the crime. The rule on this subject is stated by the Supreme Court of Illinois thus: "So we hold in this case, that when the heartless libertine, by his seductive arts, or other means, induces his confiding or intimidated victim, as the case may be, to abandon home and the wholesome restraints of parental authority, to accompany him whithersoever he may see proper to take her, without limit as to time or place, for the purpose of submitting to his licentious embraces and ministering to his unbridled lust, he clearly brings himself within the provisions of the section of the statute we are now considering, and subjects himself to the punishment therein enounced."20

18 State v. Bussey, 58 Kans. 679, 50 Pac. 891; State v. Overstreet, 43 Kans. 299, 23 Pac. 572; Slocum v. People, 90 Ill. 274; People v. Carrier, 46 Mich. 442, 9 N. W. 487; Beyer v. People, 86 N. Y. 369; Schnicker v. People, 88 N. Y. 192; People v. Seeley, 37 Hun (N. Y.) 190; State v. Chisenhall, 106 N. Car. 676, 11 S. E. 518; Payner v. Commonwealth, (Ky.) 19 S. W. 927; Humphrey v. Pope, 122 Cal. 253, 54 Pac. 847.

19 Malone V. Commonwealth, 91 Ky. 307, 15 S. W. 856; Higgins v. Commonwealth, 94 Ky. 54, 21 S. W. 231; Couch v. Commonwealth, 16 Ky. L. R. 477, 29 S. W. 29; Howell v. Commonwealth, 5 Ky. L. R. 174; State v. Jamison, 38 Minn. 21, 35 N. W. 712; State v. Keith, 47 Minn. 559, 50 N. W. 691; State v. Johnson, 115 Mo. 480, 22 S. W. 463.

20 Henderson v. People, 124 Ill. 607. 17 N. E. 68; Slocum v. People, 90 Ill. 274.

§ 2744. Proof of intent-Sufficient.-The offense may be sufficiently established by proof of two essential elements: (1) The unlawful taking of the person; (2) the intent with which it is done. The gravamen of the offense is the purpose or intent with which the enticing and abduction is done; hence it is not necessary in order to sustain a conviction to make proof of any subsequent acts. The only purpose for which the subsequent acts are proved, or are permitted to be proved, is to establish the intent with which the taking or enticing was done; but if the intent is sufficiently proved without these, the crime is established. This rule is stated as follows: "The offense, if committed at all, is complete the moment the subject of the crime is removed beyond the power and control of her parents, or of others having lawful charge of her, whether any illicit intercourse ever takes place or not. Subsequent acts are only important as affording the most reliable means of forming a correct conclusion with respect to the original purpose and intention of the accused."21 And it has been held that the unlawful intent of a defendant might fairly be inferred from the end attained and the circumstances surrounding the case.22 But it is said to be an elementary principle that when a specific intent is required to make an act an offense, that the mere proof of doing the act raises no presumption that it was done with the specific intent.23

§ 2745. Abduction for prostitution or concubinage. The offense is not established until the proof shows that the defendant took away the female with the intent of using her for the purpose of prostitution or concubinage, or some other prohibited use. It is not sufficient under such statutes to prove that the taking away was simply for the purpose of having illicit sexual intercourse with the defendant alone. Some statutes, however, make this the crime. But gener

"Henderson v. People, 124 Ill. 607, 17 N. E. 68; Slocum v. People, 90 III. 274; People v. Fick, 89 Cal. 144, 26 Pac. 759; Gravett v. State, 74 Ga. 194; State v. Bussey, 58 Kans. 679, 50 Pac. 891; Payner v. Commonwealth, (Ky.) 19 S. W. 927; People v. Carrier, 46 Mich. 442, 9 N. W. 487; State v. Gibson, 111 Mo. 92. 19 S. W. 980; State v. Johnson, 115 Mo. 480, 22 S. W. 463; State v. Rorebeck, 158 Mo. 130, 59 S. W. 67;

People v. Stott, 4 N. Y. Cr. 306;
Commonwealth v. Kaniper, 3 Pa. Co.
Ct. 276.

22 People v. Fick, 89 Cal. 144, 26 Pac. 759; Beyer v. People, 86 N. Y. 369; People v. Wah Lee Mon, 37 N. Y. St. 283, 13 N. Y. S. 767.

23 State v. Gibson, 111 Mo. 92, 19 S. W. 980; People v. Plath, 100 N. Y. 590, 3 N. E. 790; State v. Payne. 10 Wash. 545, 39 Pac. 157; Lawson Pres. Ev. 553.

ally the proof must show that it was for the purpose of prostitution, the meretricious illicit intercourse, an indiscriminate, common intercourse with men.24 But where the charge was the taking away for the purpose of concubinage, the charge was held to be sustained where the proof showed a cohabitation, though but one act of intercourse was proved.25

§ 2746. Purpose of prostitution-Prima facie proof.-It must be made to appear that the taking away of the female was for the unlawful purposes named in the statute, or some one of them. And the intent is the gravamen of the offense, and must be proved as an essential element of the crime. So it has been held that the taking of the abducted person to a house of prostitution or of ill-fame is prima facie proof of the taking for the purpose of prostitution.26

§ 2747. Proof of detention against the will.-Some statutes make the offense to consist of detaining a women against her will with intent to have carnal knowledge with her. To sustain a conviction under such a statute it is only necessary to prove that the defendant detained the complaining witness against her will with the intention to carnally know her. And it is no defense to show that there