Hendon v. State

• Decision Date: 07 November 1911
• Docket Number: (No. 3,718.)
• Citation: 72 S.E. 522,10 Ga.App. 78
• Parties: HENDON v. STATE.
• Court: Georgia Court of Appeals

72 S.E. 522

10 Ga.App. 78

HENDON

v.STATE.

(No. 3, 718.)

Court of Appeals of Georgia.

Nov. 7, 1911.

(Syllabus by the Court.)

Kidnapping (§ 5^*)—Elements op Offense—

Force—Malice—Fraud.

In prosecutions under Penal Code 1910, § 110, for the inveigling of a child, it is necessary for the state to show that the accused either "forcibly, maliciously, or fraudulently" enticed or carried the child away. Where the child alleged to have been inveigled is above the age of discretion, though under the age of 18, these elements are not sufficiently made out by showing that the child went away in company with the defendant, especially where the state's own evidence shows that the child itself went of its own free will and accord, and not as the result of any inveigling on the defendant's part.

[Ed. Note.—For other cases, see Kidnapping, Cent. Dig. § 11; Dec. Dig. § 5.*]

Error from Superior Court, Cobb County; N. A. Morris, Judge.

Essie Hendon was convicted of inveigling a child from its parents, and brings error. Reversed.

Clay & Morris, for plaintiff in error.

J. P.Brooke, Sol. Gen., for the State.

POWELD, J. This case presents about the most horrible and disgusting record we have been called upon to review since our service upon this bench began. Its disgusting details are utterly contrary to all that we are accustomed to. We have considered the case carefully. The record contains many exceptions to rulings of the court and to instructions to the jury, but none of these are well taken. The case was fairly and ably tried. We are always reluctant to set aside a verdict deliberately returned by a jury and approved by a court, on the ground that there is no evidence to support it, and are especially reluctant to do so where the record is otherwise so free from error as the one before us. But we have read this record over and over again, and the evidence is wholly insufficient to support the conviction.

The accused was charged with a violation of Penal Code 1910, § 110, which provides: "Any person who forcibly, maliciously, or fraudulently leads, takes, or carries away, or decoys or entices away, any child under the age of eighteen years from its parent or guardian, or against his will, or without his consent, is guilty of kidnapping." The child alleged to have been inveigled was a girl about 17 years old, the daughter of a poor white farmer who lived in the country between Marietta and Atlanta. He had, as a farm hand, a negro boy, who slept in a shed room in his bouse. This girl and the negro boy worked together in the field and in some way, not disclosed by the record, he managed to become criminally intimate will her. One night, after she was somewhat advanced in pregnancy, her father missed her from home. He tracked her to a spot at a branch near by, and found that she was there joined by another woman, and then both were tracked to a point on the street car line between Marietta and Atlanta. It was shown that the other track was that of the defendant in this case, who was a sister of the negro boy already mentioned. In fact, earlier during the same night this negro woman had come to the prosecutor's house, had called for her brother, and had told the prosecutor that she wanted him because one of her children was sick. It may be stated just here that this negro boy came back and went to work next morning, but a little later in the day fled, and has not been heard of since. The next morning after the night on which the girl was missed from her father's house, she and the defendant were seen to take a train together in Atlanta for Knox-ville, Tenn. They went together into a coach assigned to colored people. The porter seemed to suspect that the girl was a white girl, and, apparently having some curiosity as to why she should be riding with a negro woman, asked them about it, and the girl told him that she was a negro girl. At Blue Ridge, on the way to Knoxville, the negro woman gave the porter money with which be bought lunches and brought them in to the girl and the defendant. When they arrived at Knoxville, the porter consented to secure lodging for the negro woman, but refused to have anything to do with the white girl, and she went into another portion of the city and secured lodgings. A little later the police arrested the two in different parts of the city.

Now, If this were all the testimony, there might be enough to justify a strong suspicion that this negro woman had decoyed this white girl away in order to shield her brother from the crime he had committed—a crime which, though punishable by only a small penalty, so far as the law is concerned, would probably have been dealt with much more severely by members of the community if once it became known. But the state did not stop there. It brought the girl herself to the witness stand. She confessed...