Gravett v. The State Of Ga.

• Decision Date: 30 September 1884
• Citation: 74 Ga. 191
• Parties: Gravett. vs. The State of Georgia.
• Court: Georgia Supreme Court

74 Ga. 191

Gravett. vs. The State of Georgia.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Criminal Law. Laws. Construction Practice in Superior Court. Charge of Court Evidence. Infants. Witness. Kidnapping. Before Judge Harris. Carroll Superior Court. October Adjourned Term, 1883.

To the report contained in the decision, it is only neces-sary to add the following: W. C. Gravett was indicted for kidnapping Euphrasia S. Noles, a child of E. M. Noles, under eighteen years of age. The indictment charged that the defendant "did fraudulently lead, take, carry, decoy and entice away\'\' this child, against the will and without the consent of her parents.

After conviction, the defendant moved for a new trial, on the following among other grounds:

(1.) Because the court overruled a demurrer to the indictment.

(2.) Because the court recharged the jury on special points, as stated in the second division of the decision.

(3.) Because the court admitted evidence, over objection, of defendant, to show that the father of the girl alleged to be kidnapped had nailed up the windows of his daughter's room to keep the defendant from getting to her. [The court ruled that no sayings of the father were admissible, but that his acts to prevent defendant from reaching his daughter were admissible, whether notice of them was brought home to defendant or not.]

(4.) Because the court admitted in evidence the declaration in a suit for divorce brought by the defendant against his wife. —The ground of objection was irrelevancy.

(5.) Because the court refused to allow defendant to show that the father of the child was cruel to his family, and often treated them wrongfully. [In another ground it is stated that the defendant contended that the daughter had left voluntarily because of the cruelty of her father, and that the court confined the testimony to acts of cruelty to this daughter.]

(6.) Because the court ruled out the answer of the female witness, Sarah Noles, to the questions whether she was not the mother of a child, and whether she had ever been married, as set out in the sixth division of the decision.

(7.) Because the verdict was contrary to law and evidence.

The motion was overruled, and defendant excepted.

P. H. Brewster, for plaintiff in error.

H. M. Reid, solicitor general; Reese & Adamson, for the state.

Hall, Justice.

1. The bill of indictment charged the defendant with fraudulently leading, taking, carrying, decoying and enticing away the daughter of the prosecutor, a child under eighteen years of age, without the consent of her parents, and is substantially in the language of §43G8 of the Code.

The court charged the jury that kidnapping, under this section of the Code, was the forcible, malicious or fraudulent leading, taking or carrying away, or decoying or enticing away, any child under the age of eighteen years from its parent or guardian, or against his, her or (heir will or wills, or without his, her or their consent or consents, and that if the state proved, beyond a reasonable doubt, that the defendant, in the county of Carroll, on the day named in the indictment, fraudulently took, led or carried away, or decoyed or enticed away, the daughter of the prosecutor, she being a child under eighteen years of age, without the consent and against the will of her parent, that they might find him guilty; that the offense consisted in the purpose of the defendant to deprive the parent of his dominion, power, custody and control over his child, and to substitute his own power, custody and control over her for that of her father; that when this was done, the crime was complete; but that it was incumbent upon the state to show all these material facts before a conviction could take place.

To this charge the defendant excepted, and assigns as error that the offense is not complete, unless it was also alleged and proved that the child kidnapped was fraudulently enticed and decoyed away against her own will andwithout her consent, as well as that of her parent. Such, however, is not our apprehension of the scope and purpose of this statute. We agree with the view taken by the judge, and think that he rightly comprehended and expressed the object and intention of the legislature in its passage, when he charged the jury that the offense was complete if it was the purpose of the defendant, fraudulently to deprive the parent, against his will and without his consent, of the dominion and custody of his child, and to substitute his own dominion, custody and control over the child for that of the parent. The statute evidently provides for two cases—one is where the child kidnapped has a parent or guardian, and the other where it has neither; in the latter case, it must be forcibly, maliciously or fraudulently led, taken or carried or decoyed or enticed away against its own will and without its consent; in the former, if these things shall be done against the will and without the consent of the parent, irrespective of that of the child, this alone would complete the offense. The purpose of the statute is twofold: its object is to protect not only the rights of parents and guardians, but also those of children. It could never have been the intention of the lawmakers to leave unprotected and uncared for helpless children, who had been deprived of their natural protectors, and those for whom none had been provided by the tribunals of the country. The state is emphatically parens patriae, and owes protection to all its citizens, adults and minors. It is charged with the duty of providing safe-guards for their rights, both absolute and relative, as well such as are inborn and natural as those conferred by society. The rights of personal liberty and personal security belong to all mankind, and the obligation to preserve them from invasion, or if invaded to afford redress for the wrong, is of the highest and most imperative character. Minor children have rights, whether they have parents or guardians or not. Society itself has an interest in the prosperity of all its members, and it is incumbent upon thelegislature to make provision for preserving its good order, peace and security, and when an act is passed for this object, and is susceptible of a construction that completely attains it, the manifest duty of the courts is to give it that construction, rather than one which would exclude from its operation a portion of the cases essential to its complete aim and object. Effect should be given to each and all its parts and to every word in it, and this is effected by the interpretation adopted by the court in this instance. While the provision in question is not marked by that clearness and precision of language which characterizes the penal Code of 1833, from which it is taken, yet it is sufficiently definite to leave no doubt either of the purpose of its enactment or of the cases it was designed to embrace.

2. The jury had been out for some hours deliberating upon the case, without reaching a conclusion, and the court directed an inquiry to be made whether they had agreed upon a verdict, or were likely to agree, to which they replied they had not, and asked to be re-charged. They were brought into court and asked upon what they desired to be re-charged, and in response stated, through their foreman, they wished to be charged again upon the law of the case; the judge complied with this request by repeating to them the charge previously given them, which has been already set forth. They were then asked if they desired to be charged on any other point, to which the...