People v. Congdon

• Decision Date: 01 November 1889
• Citation: 43 N.W. 986,77 Mich. 351
• Court: Michigan Supreme Court
• Parties: PEOPLE v. CONGDON ET AL.

43 N.W. 986

77 Mich. 351

PEOPLE v. CONGDON ET AL.

Supreme Court of Michigan

November 1, 1889

Error to circuit court, Berrien county.

Information against Gordon Congdon, Desire Rosenbach, and Charles Rosenbach for abduction. Judgment for conviction. Defendants bring error.

C B. Potter, (J. C. Fitzgerald, of counsel,) for appellants.

Geo. W. Bridgman, for the People.

MORSE J.

This is a very singular case, and the result of the trial in the court below is astonishing, and almost incomprehensible. Gordon Congdon is the grandfather and Desire Rosenbach the mother of Lizzie Austin, a girl about 14 years of age at the time of the trial. Charles Rosenbach is the husband of Desire Rosenbach. The defendants were informed against in the circuit court for the county of Berrien, under the statute, for the abduction of the said Lizzie Austin. Section 9099, How. St., is as follows: "Every person who willfully, and without lawful authority, shall forcibly or secretly confine or imprison any other person within this state, against his will, or shall forcibly carry or send such person out of this state, or shall forcibly seize or confine or shall inveigle or kidnap, any other person, with intent either to cause such person to be secretly confined or imprisoned in this state, against his will, or in any way held to service against his will, shall be punished by imprisonment in the state-prison not more than ten years, or by fine not exceeding one thousand dollars." The information was filed October 9, 1888, and consisted of three counts. The first count charged a conspiracy to commit the criminal acts mentioned in the statute. The second count charges that the respondents, on the 22d day of July, 1888 at Benton township, "willfully, and without lawful authority therefor, did forcibly and secretly inveigle and kidnap one Lizzie Austin, with intent to cause the said Lizzie Austin to be secretly confined in the state of Michigan, to-wit, at Benton township, in said county, against her will, and to be held to service against her will." The third court charges that the respondents, on the 22d day of July, 1888, at the town of Benton, "with force and arms, in and upon one Lizzie Austin, did make an assault, and the said Lizzie Austin then and there, willfully and without lawful authority therefor, and without the consent and against the will of the said Lizzie Austin, did forcibly seize and secretly confine for a long space of time, to-wit, for the space of one day, at the township of Benton, in said county, with intent then and there to cause the said Lizzie Austin to be sent out of the state of Michigan, and did then and there, afterwards, to-wit, on the 23d day of July, 1888, forcibly send the said Lizzie Austin out of the state of Michigan." The trial commenced January 22, and closed January 23, 1889. All three of the respondents were found guilty.

Lizzie Austin was the daughter of John and Desire Lawrence. When she was eight years old she was adopted by Stephen M. and Kate M. Austin, husband and wife. The proceedings for this adoption were in the probate court, under Act No. 26 of the Public Laws of 1861, (How. St. � 6379), and the articles of adoption were signed by the Austins and Lawrences, and acknowledged by them. Lizzie made her mark under the name of Mary E. Lawrence, and it is certified by the notary that she also acknowledged the instrument. July 9, 1883, the probate court entered its decree, changing the name of the child from Mary E. Lawrence to Mary E. Austin, and declaring her to be the heir at law of said Stephen M. and Kate M. Austin. From that date until about the 22d day of July, 1888, she lived with the Austins as their child. In the mean time her parents were divorced. Her mother remarried, and moved to Chicago. The mother had some correspondence with Mrs. Austin looking towards the restoration of her child to her, but Mrs. Austin wanted $250, which Mrs. Rosenbach thought to be too high. On Sunday, July 22, 1888, Mr. and Mrs. Rosenbach were staying at the house of one Fleming, in Benton Harbor, at which place the Austins resided. Congdon, the grandfather, also lived at Benton Harbor. Saturday night, Lizzie stayed overnight at the residence of a brother of Mrs. Austin. On her way to the Austins on Sunday she met her grandfather, who told her her mother was at Fleming's and asked her if she did not wish to see her. Lizzie answered, "Yes," and went with her grandfather to visit her mother. At Fleming's she also met Mr. Rosenbach. Her mother asked her if she would go to Chicago, and live with them. Lizzie willingly consented. Rosenbach went to get a team; but, being unable to procure one, he and Lizzie traveled on foot into the country towards Three Oaks, a station on the Michigan Central Railroad. They stopped at several farm-houses, seeking conveyance, and finally found one. A farmer drove them to Three Oaks, where they took a train for Chicago. Lizzie remained at Chicago about a week, when Austin, with a deputy-sheriff of Berrien county, took her forcibly from the custody and care of her mother, and brought her, against her will, to Mrs. Austin's, where she has ever since remained. Upon the trial, Lizzie, then about 14 years old, was sworn by the prosecution, after they were forced to do so by the demand of the defense and the reluctant ruling of the court that they must obey the law in this respect, and she testified that no force, threats, promises, or other inducements were used by her mother, or any of the respondents, to compel, or even to coax, her to go to Chicago; that she had long wished to leave the Austins, and go to her mother; that she gladly and willingly went; and that if she had her own way she would at the time she was testifying go home with her mother. No evidence was adduced to show any force used, or any undue means of any kind resorted to, to take this girl away from the Austins "against her will," which is the gist of the offense under the statute, nor was she confined or deprived of her liberty for a moment. It is true, one witness swore that while she was going with her grandfather to Fleming's, to see her mother, Congdon had hold of her arm; but the witness did not notice that the girl was manifesting any unwillingness to go with him. All the other testimony in the case is overwhelming to the effect that the child went gladly with her grandfather to see her mother, as would have been natural; and that she went willingly, on foot, with her step-father, until a team was procured to take them to a station.

The case seems to have been tried from the beginning by the prosecution and the court on a wrong theory. The question submitted to the jury, in effect, was who had the best right to the custody of the child. The court told the jury, in substance, that Mr. and Mrs. Austin were to be considered the real parents of...