State v. Elliott

• Decision Date: 03 November 1930
• Docket Number: 30739
• Citation: 171 La. 306,131 So. 28
• Court: Louisiana Supreme Court
• Parties: STATE v. ELLIOTT et al

131 So. 28

171 La. 306

STATE v. ELLIOTT et al

No. 30739

Supreme Court of Louisiana

November 3, 1930

Appeal from Thirteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge.

Hosea Elliott and others were convicted of the offense of kidnapping, and defendant named appeals.

Conviction and sentence annulled, and case remanded.

George L. Fontenot, of Ville Platte, and Williams & Blackshear, of Oakdale, for appellant.

Percy Saint, Atty. Gen., R. Lee Garland, Dist. Atty., of Opelousas and E. R. Schowalter, Asst. to Atty. Gen. (L. Austin Fontenot, of Opelousas, of counsel), for the State.

OPINION

ROGERS, J.

Hosea Elliott, Herlis Elliott, and Verlia Elliott were indicted for the offense of kidnapping (Rev. St. § 806, as amended by Act No. 299 of 1914). The defendants were tried jointly and convicted of the offense charged. They filed a motion for a new trial, which was granted as to the defendants Herlis Elliott and Verlia Elliott, but was refused as to the defendant Hosea Elliott, who was sentenced to serve sixty days in the penitentiary. This appeal is by Hosea Elliott from his conviction and sentence.

The specific charge laid against the defendants was that they kidnapped Rubie Elliott, a female child four years of age the child being at the time of the alleged kidnapping in the custody of her mother, Mrs. Lucia Elliott.

Hosea Elliott and Herlis Elliott are the brothers and Verlia Elliott is the sister of Sylvester Elliott, the father of the child, Rubie Elliott.

Appellant contends that his conviction should be annulled, because the kidnapping statute does not apply to him, as he was merely acting as the agent of the father of the child. He saved the point by excepting to the refusal of the judge to give certain special charges to the jury, and to the overruling of his motion for a new trial.

As disclosed by the record, appellant is the brother of Sylvester Elliott, the father of the child, Rubie Elliott, issue of the marriage of Sylvester Elliott and Lucia Fontenot Elliott. Appellant sets up that at the time of the commission of the act with which he is charged no separation or divorce proceeding had been filed by, and no order of court had been rendered awarding the custody of the child to, either spouse. That Sylvester Elliott, his wife, and his child lived together near the home of Dave Elliott, the child's paternal grandfather. That within two or three days before the act for which he was indicted was committed, Mrs. Lucia Elliott left the matrimonial domicile for the home of her father, J. B. Fontenot, taking her child with her. That on the day prior to the appellant's act, Sylvester Elliott went to the home of his wife's father for the purpose of seeing the child. That on returning home that night he requested and authorized appellant and the two other defendants to obtain the child for him. That the next morning, about 10:30 o'clock, Sylvester Elliott renewed his request and authorization, and, in accordance therewith, appellant and the two other defendants went to the home of J. B. Fontenot to secure the child. That they engaged Mrs. Lucia Elliott in conversation, and while thus engaged Miss Verlia Elliott took the child in her arms and handed her to appellant who carried her away with him. That Mrs. Lucia Elliott protested against the taking of the child and followed Herlis Elliott and Miss Verlia Elliott to their automobile, which was parked in front of the home of J. B. Fontenot. That, after some conversation with Mrs. Lucia Elliott and her mother, Mrs. J. B. Fontenot, Herlis Elliott and Miss Verlia Elliott promised to return the child the same night. That Herlis Elliott and Verlia Elliott then drove away in the automobile, and were joined some distance down the road by appellant, who had possession of the child. That the child was delivered to her father, Sylvester Elliott, who took her to his father's house, where she was found by a deputy sheriff. That the same night the child was returned to her mother, Mrs. Lucia Elliott, by the deputy sheriff, who was accompanied by Miss Verlia Elliott. It further appears from the record that at the time appellant obtained possession of the child he was armed with a pistol which he drew and brandished in the air.

The trial judge refused to give the special charges requested, which were five in number, on the ground that a part of them were included in the original charge, and the others were misleading and tended to confuse the jury; that the law provides the manner and method of taking children from the care and custody of their parents, which could not be done by force and at the point of a pistol; hence the passage of Act No. 299 of 1914.

The trial judge was correct, of course, in refusing, to give so much of the requested charges as were included in the general charge and as might tend to confuse the jury, but we think he erred in refusing to give the charges so far as they were calculated to advise the jurors that, if they found that no suit for divorce or separation had been filed between the spouses, and there was no order of court awarding the custody of the child to her mother, and that the defendants in taking the child were acting merely as the agents of and for account of her father, they were not guilty of kidnapping under the statute.

When parents quarrel and separate each naturally desires and claims possession of their children. The statute has no application to such cases. Its purpose is to protect parents and other lawful custodians of children against the malice or greed of the kidnapper, not to punish their natural...