Escobar v. State
Decision Date | 05 April 1939 |
Docket Number | No. 20261.,20261. |
Parties | ESCOBAR v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from Knox County Court; E. L. Covey, Judge.
John Escobar was convicted of enticing and decoying a minor from the custody of her parents, and he appeals.
Affirmed.
Stephens & Sams, of Benjamin, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Appellant was convicted of enticing and decoying a minor from the custody of her parents, and was by the jury fined $150, hence this appeal.
There are no bills of exception found in the record, and consequently we are relegated alone to an examination of the facts in order to ascertain their sufficiency.
The facts show that the minor, Mildred Cook, a girl fifteen years old, was living with her father and mother in Knox County, in rather poor circumstances. She testified that she did not longer want to live with her parents, and that she asked appellant to take her away from home; that she asked him six or seven times. Her parents both testified that they did not want her to leave home, and that they did not give their consent for appellant to take her away.
The State introduced appellant's confession, as follows:
Mildred Cook, the girl, testified that she loved appellant, and would marry him if he was not already married. That she wanted to go to Old Mexico and live with him; that he never tried to get her to leave home with him; that she had an act of intercourse with appellant in Knox County, and several acts in San Angelo.
Guadalupe Flores testified that appellant came to his house on the night of March 31, 1938, near Knox City, and asked him to take him and a white girl to Old Mexico. He said he was in trouble with a white girl. The witness told appellant that he could not take him to Old Mexico, but would take him to San Angelo, where witness had a brother, and he did take them there, and appellant paid him about $17 for the trip.
These are the salient points in the case, and present appellant's contention, and that is that he could not be guilty of enticing and decoying a minor away from the custody of its parents when such minor requested him to take her away from such custody, and went with him voluntarily.
We are not impressed with the soundness of such doctrine. In this instance the person offended against is not the minor but the parent of the minor who thus loses the privilege of the society and the custody, care, control and services of such minor. It is the parent's duty, and should be his pleasure, to train and care for the child, and attempt to bring it up in such a manner that it may become a useful member of society. This is a valuable right, and by proper thinking parents treasured most highly. That such a right can be wished away at will by a wayward child is not based upon sound reason, and, in our judgment, the voluntary leaving home with another,—who might have held out enticing and alluring ideas and promises to such child,—should not be a proper defense to a charge such as this.
The case of Cummins v. State, 36 Tex. Cr.R. 398, 37 S.W. 435, cited by appellant, is not in point, the facts therein widely differing from those in the instant case, that case holding that the bare fact that a party hires a minor with knowledge that such minor has a parent living is not sufficient to constitute the offense of knowingly decoying or enticing a minor from his parent.
In the case of Cockrell v. State, 71 Tex. Cr.R. 543, 160 S.W. 343, 48 L.R.A.,N.S., 1001, we also find a different state of facts from the instant case. In that case accused was a 19 year old girl. She and her cousin, Edna Cockrell, 18 years of age, went to a party with the knowledge of Edna's mother but not the knowledge of her father. When the two girls returned to Edna's home her father whipped her, and Lula, the accused, told Edna that she would leave home before she would stand such treatment. On the next night they again went to a party, and upon returning home Edna told her mother that if the mother was going to tell the father about this last party, that she, Edna, was going to leave home, and upon the mother refusing to promise not to tell the father, Edna did leave home and went to accused's home, accused's father being Edna's uncle. The next day they heard the father was looking for Edna with a gun, and they finally sent her from one uncle to another until she reached Oklahoma, in order to keep the enraged father from killing her. In this case no one enticed her, no one decoyed her; it was the unreasonable act of the father that forced her to leave her home, and surely he had no right to complain because of the fact that it was his outrageous conduct towards his daughter that forced her to leave.
We think the true doctrine is adverted to in the following quotation from Truelove v. State, 96 Tex.Cr.R. 537, 258 S.W. 826, 827, as follows:
Following this rule we find that in California there was a similar offense denominated "child stealing," and under that statute * * *" ." The above being a quotation from People v. Torres, 48 Cal.App. 606, 192 P. 175, 176.
Again we quote from People v. Smith, 17 Cal.App.2d 468, 62 P.2d 436, 440, a California case: ...
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