John v. State

• Decision Date: 03 March 1896
• Citation: 6 Wyo. 203,44 P. 51
• Parties: JOHN v. STATE
• Court: Wyoming Supreme Court

44 P. 51

6 Wyo. 203

JOHN v. STATE

Supreme Court of Wyoming

March 3, 1896

Information filed in District Court, September 16, 1895.

ERROR to the District Court for the County of Sweetwater. HON RICHARD H. SCOTT, Judge of First Judicial District presiding.

William E. John was convicted of the crime of kidnapping, and prosecuted error. The material facts are stated in the opinion.

Reversed.

Wm. Newton and Mail & Chiles, for the plaintiff in error.

It is the province of the judge to determine the admissibility of confessions (Whar. Cr. Ev., 689; 1 Greenl. Ev., 219; 3 Am. & Eng. Ency. L., 464; Com. v. Preece, 140 Mass. 276; Proffatt on Jur. Tr.). Unless voluntary they should be excluded. (Com. v. Preece, supra; Williams v. State, 72 Miss. 117; 3 Am. & Eng. Ency. L., 449; People v. Wolcott, 51 Mich. 612.) The motive which actuated the plaintiff in error can not affect the question of his guilt. It was therefore error to admit the records of the magistrate showing the fact that the child had been subpoenaed as a witness. (State v. Farrar, 41 N.H. 53; Eberling v. State, 136 Ind. 117.) Where the statute of another State is adopted, the judicial construction which obtains in that State is also adopted. (Chisholm v. Weisse (Okl.), 39 P. 467; Coffield v. State, 44 Neb. 417; 23 Am. & Eng. Ency. L., 433.) Our statute was taken from Indiana, and has been construed by the supreme court of that State in the following cases: State v. Sutton, 116 Ind. 527; State v. Kimmerling, 124 id., 382; Boes v. State, 125 id., 205; Eberling v. State, 136 id., 117. Under the statute, there can be a forcible carrying off, or a fraudulent decoying, but not a fraudulent carrying off. It is reversible error to instruct the jury on issues not raised by the pleadings (2 Thompson on Tr., 2313; Jenkins v. State (Tex.), 27 S.W. 1078). Instructions should not be so drawn as to direct the attention of the jury to prominent features in the testimony on one side, while sinking out of view or passing lightly over portions on the other side which deserve equal attention. (2 Thomp. Tr., 2330; Proffatt on Jur. Tr., 319; 11 Am. & Eng. Ency. L., 253.) Proof of fraud will not be sufficient to convict unless relied on to the exclusion of every other motive for the act. (2 Bish. New Cr. L., 1122; Clark's Cr. L., 188.) The consent of the mother to the taking away of the child was a complete defense. She was the legal custodian of the child; and her will stood in place of the will of the child. (Hunt v. Hunt, 94 Ga. 257; Com. v. Nickerson, 5 Allen, 19; State v. Farrar, 41 N.H. 53; Bish. Direct. & Forms., 570.) The taking was in pursuance of law if by authority of law.

Benjamin F. Fowler, Attorney-General, for the State.

The presumption is that a plea of guilty is a voluntary plea. (Cleveland v. Gohrs, 13 S. C., 397.) It is a solemn admission of every fact necessary to be proved to sustain the charge. (2 Russ. on Cr., 824.) The record of the preliminary examination containing a confession of guilt by a plea of guilty was rightly admitted in evidence. (2 Russ. on Cr., 824; Whart. Cr. L., 683; Com. v. Ayers, 115 Mass. 137.) Such a plea is not looked on with suspicion. (State v. Bowe, 61 Me. 175.) The fact that the officer had advised him to confess is not sufficient to exclude the plea. The confession to the officer was not offered. (U. S. v. Nordello, 4 Mackey, 503; People v. Smith, 3 How. Pr., 226; Hawkins v. State, 7 Mo. 190; Fonts v. State, 8 O. St., 98; 63 Ga. 600; 3 Am. & Eng. Ency. L., 464.) It is a well-settled presumption that a child intends to obey the laws of the State, & that any violation of law which a child commits through the influence of a more mature person, is done against the will of the child. Therefore, when John took the child away with him in violation of the laws of the State, he took her against her will, because her natural intention would be to obey the subpoena. The evidence touching the subpoena was therefore proper. There is no parental authority independent of the supreme power of the State. The public has a paramount interest in the virtue and knowledge of its members (Mercein v. People, 25 Wend. 64). The right of parental control is a natural, but not an inalienable, one. (Ex parte Crouse, 4 Whart. (Pa.), 9; Miner v. Miner, 2 Ill. 43; in re Stockman, 71 Mich. 180; Cowls v. Cowls, 2 Gilm., 435; Stripling v. Ware, 36 Ala. 87.) The natural right which parents have in children does not extend to the right to commit unlawful acts either upon the person or will of the child. (Com. v. Goodhue, 2 Metc., 193; State v. Lawrence, 19 Neb. 309; Bergen v. People, 17 Ill. 425.) A father who has the custody of a child can not take it out of the jurisdiction of the court under objections. (9 Paige, 233; 5 id., 595.) The mother had no authority to consent to the taking away of the child to avoid the subpoena. Therefore the consent is no defense. (Johnson v. State, 2 Humph., 283; Anderson v. State, 3 Head., 455; Fletcher v. People, 52 Ill. 395; Reg. v. Hopley, 2 F. & M. (Cockburn), 202.)

POTTER, JUSTICE. GROESBECK, C. J., and CONAWAY, J., concur.

OPINION

POTTER, JUSTICE.

William E. John, the plaintiff in error, was charged by information with unlawfully and feloniously, forcibly and fraudulently carrying away from her place of residence one Jennie John, her place of residence then and there being in the town of Rock Springs, in the county of Sweetwater, and it was alleged that the same was not done in pursuance of the laws of the State of Wyoming, nor in pursuance of the laws of the United States. A plea of not guilty was entered, and upon trial the plaintiff in error was convicted and sentenced to imprisonment in the penitentiary for the term of five years.

Several errors are assigned, among them being the admission in evidence of the record and proceedings of a justice of the peace at Rock Springs showing the pendency and disposition of a criminal prosecution upon preliminary examination, wherein one Thomas Sutton was charged with criminal assault upon the said Jennie John, and the latter had been subpoenaed as a witness; also the admission in evidence of the plea of guilty entered by the plaintiff in error, before the committing magistrate upon his preliminary examination; and the conduct of the trial judge, by which it is urged the judge exhibited to the jury his own opinion of the parties litigant, and the merits of the case.

The principal contention, however, arises upon the rulings of the court, and instructions respecting the effect of the consent of the mother of the child to her removal.

Briefly the main facts in the case are, that Thomas Sutton, who was the stepfather of Jennie John, he having married the mother after her divorce from the plaintiff in error, was charged with a criminal assault upon the girl, and proceedings before an examining magistrate were pending at the time the plaintiff in error committed the act complained of. At that time also, the girl had been subpoenaed as a witness in such proceedings, had appeared once, and upon the examination being continued to a subsequent day, was, with the other witnesses, ordered to appear at the adjourned hearing. This order does not appear upon the record of the magistrate, but he testified that he did, in fact, order the witnesses who had been subpoenaed, so to appear. Prior to the day to which proceedings in the Sutton matter had been continued, William E. John, the father of Jennie John, came to Rock Springs from Cheyenne, where he had been residing, and with the full consent, connivance, and assistance of Mrs. Sutton, the mother of the girl, and with whom the latter was living, and in whose custody she lawfully was, cut the girl's hair short, dressed her in boy's clothes, and took her with him upon a freight train, afterward at some place along the road, changing to a passenger train, and by that means of travel carried the child with him to Denver, in the State of Colorado. After getting upon the train, the father instructed the child to assume the name of Willie Evans. The girl herself did not offer any opposition to going with her father, or protest against it in any way, but testified upon the trial that she was willing, and wanted to go with him; that she expected to be gone about a week; that she was told she would be given a ride upon the train, and she wanted such a ride, that she loved her father as well as her mother, and would do anything her father told her to do. It seems reasonably clear from the testimony, as well as entirely natural for one of her years, that parental authority would be and was sufficient to cause her to go with the plaintiff in error, especially as she was aware that her mother not only did not object, but consented to it. It further appears from what was said by both the father and mother that it was intended to keep her away until after the day set for the adjourned hearing in the Sutton case; and the conclusion is irresistible that both the father and the mother were acting in the matter to prevent the presence of the child as a witness at the examination in that case. Whether it becomes at all material or not it may be suggested that within a few days, but after such day set for the hearing of the case against Sutton, the plaintiff in error and the girl were found in Denver, and both of them were brought back to Rock Springs by an officer of Sweetwater County, the father upon a requisition, a complaint for kidnapping and child stealing having been preferred against him. The mother, also, seems to have been on the same train as officer and prisoner, and with the child upon the return to Rock Springs. Subsequently the original complaint against Sutton was dismissed, and another was filed, upon the hearing of which before the examining magistrate, the...