State v. Taylor

• Decision Date: 10 March 1928
• Docket Number: 28,126
• Citation: 264 P. 1069,125 Kan. 594
• Parties: THE STATE OF KANSAS, Appellee, v. WILLARD E. TAYLOR, Appellant
• Court: Kansas Supreme Court

264 P. 1069

125 Kan. 594

THE STATE OF KANSAS, Appellee, v. WILLARD E. TAYLOR, Appellant

No. 28,126

Supreme Court of Kansas

March 10, 1928

Decided January, 1928

Appeal from Sedgwick district court, division No. 1; J. EVERETT ALEXANDER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DIVORCE--Custody of Children--Award to Stepmother. In a divorce action where an infant, the child of the husband by a former marriage, had been brought into the home of the spouse after his marriage to the last wife, and was cared for by her until the divorce was granted to the wife for the fault of the husband, in her pleading she had asked for the custody of the infant, and the court in its decree awarded its custody to her. Held, that although she was only the stepmother of the infant, the decree awarding custody to her was not absolutely void.

2. KIDNAPPING--Forcible Taking of Child--Effect of Divorce Decree Awarding Custody. The subsequent forcible kidnaping and taking of the infant by the defendant from the person having lawful charge of her, without the consent of such person, with the intent to take the infant out of the state or to detain and conceal her from the one having lawful charge of the infant, is an offense under R. S. 21-440, although the defendant may not have had personal knowledge of the decree awarding the custody of the infant to another.

3. SAME--Evidence. Assignments of error upon the reception of evidence, upon instructions given and of statements made in arguments by the prosecuting attorney, examined and held to be without merit.

J. W. Ward and Tom Harley, both of Wichita, for the appellant.

William A. Smith, attorney-general, Roland Boynton, assistant attorney-general, William J. Wertz, county attorney, George L. Adams, Wilmer B. Harms and P. K. Smith, assistant county attorneys, for the appellee.

OPINION

JOHNSTON, C. J.:

Willard E. Taylor was convicted upon a charge of kidnaping a child, whose custody had been given to Edna Taylor, his former wife, under a decree of the district court. The judgment was based upon a verdict of the jury that he was guilty of forcibly taking and carrying away Nellie Lorraine Taylor, a child under the age of twelve years, with intent to detain and conceal her from a person having the lawful charge of the child in violation of R. S. 21-440. He appeals.

It appears that the defendant and Edna Taylor were married on March 15, 1923, and defendant claimed that the child was born of a former marriage of the defendant Willard E. Taylor to Pearl Brown, who died in 1923. In an action of divorce brought by the defendant against Edna Taylor, she filed a cross petition alleging misconduct, including adultery, on his part upon which she asked for a divorce and the custody of the child. He failed to appear and prosecute his action at the time set for the trial, and upon her evidence the court found that the allegations contained in her cross petition were true and adjudged and decreed that Edna Taylor be divorced from the plaintiff and that she be given the care, custody and control of Nellie Lorraine Taylor, her stepchild. It appears that the child was brought into the home immediately after the marriage in 1923, and Edna Taylor had kept and cared for the child until the time she was alleged to have been kidnaped by the appellant on April 11, 1927.

It is the contention of the defendant that the order granting a divorce to Edna Taylor and the award to her of the custody of the minor child was absolutely void in that the statute (R. S. 60-1510) gives the court authority to make provisions for the guardianship, custody and support of minor children of the marriage, but makes no provision for stepchildren, and that Nellie Lorraine Taylor was only the stepchild of Edna Taylor. The provision referred to is:

"When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and modify or change any order in this respect whenever circumstances render such change proper." (R. S. 60-1510.)

In making provision for the custody, support and education of children when a divorce is granted, does the clause of the statute authorizing provision to be made for "minor children of the marriage" deprive the court of such power where one of the parties is the natural parent of the child and the other its step-parent? It may be assumed that the appellant was the father of the child, a fact about which there was some question in the evidence. It is conceded that Edna Taylor to whom the custody was given was a stepmother. She had had the care of the child since her marriage to Taylor, who had left the state and for a considerable time before the divorce had contributed nothing towards her support or the support of his wife. When asked who was supporting the child during his absence, he stated that he did not know. In the divorce action the court had full jurisdiction of the parties. In dissolving the marital relation and the breaking up of the home, the court necessarily took notice of the fact that there was an infant child in the home for whom provision must be made. The infant, it must be assumed, was the child of one of the parties to the action, and that party had practically abandoned it. As a result of the marriage, the child had been brought into the home and Edna Taylor, the wife, assumed its care and stood in loco parentis towards it. We think the expression in the statute, "minor children of the marriage," fairly interpreted included the infant in question, and...