State v. Metcalf
| Decision Date | 25 June 1929 |
| Citation | 129 Or. 577,278 P. 974 |
| Parties | STATE v. METCALF. |
| Court | Oregon Supreme Court |
Department 1.
Appeal from Circuit Court, Wallowa County; Wm. A. Ekwall, Judge.
James Metcalf was convicted of child stealing, and he appeals. Affirmed.
The defendant, James Metcalf, was indicted and tried for the crime of child stealing. The statute is as follows: " Child Stealing, How Punished.--Every person who maliciously, forcibly, or fraudulently takes or entices away any child or minor under the age of sixteen years, with intent to detain and conceal such child from its parent guardian, or other person having the lawful charge of such child, shall upon conviction thereof, be punished by imprisonment in the state penitentiary not less than one year nor more than twenty-five years, or by fine not exceeding $10,000." Section 1927, Or. L.
The indictment is as follows: "The said James Metcalf, on the 6th day of August, 1928, in the county of Union and State of Oregon, then and there being, did then and there unlawfully, feloniously, maliciously, forcibly and fraudulently take and entice away one Nina Case, who was then and there a child and minor under the age of 16 years, with the intent on the part of him, the said James Metcalf, to then and there detain and conceal the said Nina Case from one Blanche Case, who was then and there the parent of and the person having lawful charge of the said Nina Case."
A change of venue was requested, and the cause was transferred to Wallowa county for trial. At the commencement of the trial defendant's counsel, after the opening statement had been made, requested the court to require the prosecution to elect as to whether the taking of the child was maliciously forcibly, or fraudulently. In considering this, the court said:
The testimony of the child indicated that defendant was on friendly terms with the Case family, which seems to have then consisted of Mr. and Mrs. Case and Nina Case, the child, who at the time of the occurrence in question was 6 days under the age of 13 years. There were three bedrooms in the Case dwelling, the one nearest the door being usually occupied by Mr. and Mrs. Case; the next by other visiting persons, which sometimes included the defendant; and the last room in the corner by Nina Case. To enter Nina's bedroom by the front door would require a person, so entering, to pass the room occupied by her parents; but Nina testified that there was a window broken out in her room so that a person could enter through the opening caused by the missing window. For a week previous to the occurrence, Nina had been sleeping outside in an automobile a short distance from the house. A few days previous to the occurrence, defendant had borrowed a wagon and a bay bald-faced horse from Mr. Case. The horse had been injured in one foot by barbed wire so that, as a result, the hoof had grown in, partly covering the frog of the foot thereby causing the track to appear smaller than the tracks of the other feet, and otherwise presenting a rather unusual and noticeable appearance. This fact will become material further as furnishing some corroboration of her account of the route she claims the defendant took on the night of her alleged abduction. The distance from where the Case family lived to the cabin of the defendant, near which she was secreted, seems to be about 20 miles, perhaps a little more than that. No map of the locality or road is in evidence, and the testimony as to direction is meager, although not absolutely essential. Defendant's cabin is in a somewhat secluded spot in the mountains, and, except for a clearing where it is situated, the country appears to be timbered and brushy with scant settlements, if any, near to the clearing of defendant. The road to, and perhaps passing, the cabin is rough and untraveled.
Having probably inadequately furnished a background for the testimony introduced, we now recur to that. Nina Case, the principal witness, after stating the fact that on August 6th she was sleeping in the automobile, as previously mentioned, her testimony on direct examination is as follows:
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