State v. Rhoades

• Decision Date: 05 July 1902
• Citation: 29 Wash. 61,69 P. 389
• Court: Washington Supreme Court
• Parties: STATE v. RHOADES. [1]

69 P. 389

29 Wash. 61

STATE v. RHOADES. ^[1]

Supreme Court of Washington

July 5, 1902

Appeal from superior court, Pierce county; W. H. Snell, Judge.

Samuel Armstrong Rhoades was convicted of kidnapping, and he appeals. Affirmed.

Leo &amp Cass and Marshall K. Snell, for appellant.

Fremont Campbell, Charles O. Bates, and Walter M. Harvey, for the State.

HADLEY, J.

Appellant was charged with the crime of kidnapping. The information alleges that on or about the 28th day of August, 1901, in Pierce county, state of Washington, the appellant 'unlawfully, feloniously, maliciously, forcibly, and fraudulently did lead, take, decoy, and entice away Clair Millmore Rhoades, a child under the age of twelve years, to wit, of the age of ten years, with the intent then an there to detain and conceal the said Clair Millmore Rhoades from Emma Rhoades, the mother of said Clair Millmore Rhoades, and the person who then and there had the lawful charge of said Clair Millmore Rhoades, and the said defendant Samuel Armstrong Rhoades did so as aforesaid then and there unlawfully, feloniously, maliciously, forcibly, and fraudulently lead, take, decoy, and entice away the said Clair Millmore Rhoades against the will and without the consent of the said Emma Rhoades.' A trial was had before a jury, which resulted in a verdict of guilty. Motions for new trial and in arrest of judgment were denied, and judgment was entered upon the verdict of the jury, by which appellant was sentenced to serve a term of 14 months' imprisonment in the state penitentiary. From said judgment this appeal was taken.

The appellant and Emma Rhoades, mentioned in the above quotation from the information, were formerly husband and wife, and the child, Clair Millmore Rhoades, is their son. On the 26th day of March, 1898, said Emma Rhoades procured a decree of divorce from appellant in the superior court of the city and county of San Francisco, state of California. By the terms of that decree the custody of the minor children of the said marriage was awarded to the mother, said Emma Rhoades. There were two children,--the boy above named, and a sister about two years older. Appellant appeared in the divorce suit and filed an answer to the complaint. If he was not personally present in the court room at the time of the trial, he was represented by counsel at the trial, and was personally in the court house where the trial was held, and while it was going on. A few days before the decree of divorce was rendered, but pending the progress of that case the mother sent the little children to friends who resided in Alaska. Soon after the decree was entered the mother joined the children in Alaska, and from that time took personal care and charge of them, supporting them by her own labor and exertions. Thereafter she came with the children to Seattle to reside, and engaged in the business of keeping a small store for the sale of Indian curios gathered from Alaska and elsewhere. Prior to the 28th day of August, 1901, she sent the boy, Clair Millmore Rhoades, to board for a time with a Mrs. Derville, who resided at Steilacoom, in said Pierce county. The children had each been sent there on occasions before for their vacations. On the date above named the appellant went to Steilacoom, and, through the assistance of a boy whom he paid to discover for him the where-abouts of the child, learned that he was playing with some other children on the beach, not far away. This boy whose assistance he sought testified that appellant told him he would like to get the child away without saying anything about it to the people with whom he boarded; that appellant gave this boy $1, and told him to buy some candy and give to the child, and tell him his papa was there and wanted to see him; that he bought 10 cents' worth of candy, and went in search of the child, and found him upon the beach with other children, but concluded not to give him the candy or make any attempt to get him away, and simply returned and told appellant where the child was, at the same time offering to return the 90 cents of the $1 remaining, which appellant declined to accept. Appellant then went to the beach and found the child. Mrs. Derville testified as follows: 'A. The children were bathing on the beach, and my little girl ran up and said that Clair's papa had come and wished to take him away, and I thought the child was mistaken, but she said 'No,' so Mr. Rhoades came up and introduced himself, with the children. Q. That was the defendant here, Mr. Rhoades,--this gentleman sitting over there? A. Yes; and I asked Clair if that was his father, and the answer the boy made was, 'Yes; that is my papa.' Mr. Rhoades said he had seen Mrs. Rhoades a few days previous in Tacoma, and she said he could go to Seattle to visit the children, which he done, and he only found the girl, but not the boy; that the boy, she said, was in Alaska, with his uncle, but would be down in a few days, and he says 'Here I find him in Steilacoom.' I told Mr. Rhoades that the boy was well cared for, and if he would leave him a few days--I knew nothing of the case. But, no, he would like to take him then,--at once. I told him there was a board bill. That didn't matter, he said. He paid me the board bill and took the boy. I asked him, as a gentleman, before he left me, if he would take that boy to his mother, and he said, 'I give you my word I will take that boy to his mother, in Seattle, to prove to her that she has deceived me.' Q. That was the promise he gave you at the time? A. That was the promise that he gave me. Q. Did Clair leave at that time? A. Yes; I dressed the little fellow, and I packed up his things, and he left with his father.' Appellant had arranged for a horse and buggy and driver, and immediately left Steilacoom with the child. They were driven to Tacoma, where they remained for about an hour, when the driver proceeded with them to Orting. Appellant afterwards took the child aboard a train going east. They proceeded to Pendleton, Or., where they were joined by the present wife of appellant. They then traveled with a team to Boise, Idaho, and afterwards went to Salt Lake, Utah, thence to Pueblo, Colo., and from there to Lamar, from which place the child was brought back by an officer. The child himself testified: 'Q. Clair, when your father stated he would take you to Seattle, who did he say he was going to take you to? A. To my mother. Q. You thought you were going to your mother? A. Yes, sir.' The record of the testimony is voluminous as to the history and relations of appellant and his former wife, but other facts necessary to the determination of this case will be referred to in the discussion hereafter.

The statute defining the crime with which appellant is charged is found in section 7050, 2 Ballinger's Ann. Codes & St and is as follows: 'If any person maliciously, forcibly or fraudulently lead, take, decoy, or entice away any child under the age of twelve years, with the intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child, he shall be punishd by imprisonment in the penitentiary not more than ten years, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment.' As we have seen, the custody of this child was awarded the mother by the court in California, and, if that decree was effective, she was at the time he was taken by appellant, in the language of the statute, the 'person having the lawful charge of such child.' It is assigned as error that the court instructed the jury that the California court which granted the decree of divorce had jurisdiction to fix therein or thereby the custody of the boy, Clair Millmore Rhoades. In order that this claim of error may be more clear, it is necessary to refer to more of the facts shown by the record: Appellant, during his life, has engaged in the several occupations of barber, harness maker, and...