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CHAPTER V.

ABDUCTION AND KIDNAPPING.

A. - STATUTES. [For purposes of condensation the statutes on this subject are here omitted. They will be found in the sixth edition, $ 1176. See, for statutory decisions, Com. v. Blodgett, 12 Metc. 56; Com. v. Robinson, Thacher's C. C. 488; Com. v. Cook. 12 Met. 93; People v. Merrill, 2 Parker C. R. 590 ; Carpenter v. People, 8 Barbour, 503 ; People v. Parshall, 6 Parker C. R. 129; Prigg v. Com. 16 Peters, 538 ; Com. v. Alberti, 2 Pars. 495.]

B. - OFFENCE AT COMMON LAW. $ 1202. Under the English statute, g from which most of the American statutes of abduction are taken, the indictment must allege that the taking was for lucre, in order to show which, it must be proved that the woman had substance, either real or personal, or is heir apparent; and it must be further alleged and proved that she was taken against her will, and afterwards married to the misdoer or to some other by his assent, or that she was defiled, that is carnally known; because no other case is within the preamble of the statute, to which the enacting clause clearly refers, for it does not say, that “whatsoever person or

g“That whereas women, as well the same woman, so taken against her maidens as widows and wives, having will, shall be felony ; and that such substances, some in goods movable, misdoers, takers, and procurers to the and some in lands and tenements, and same, and receivers knowing the said some being heirs apparent unto their offence in form aforesaid, shall be reancestors, for the lucre of such sub- puted and judged as principal felons ; stances, have been oftentimes taken and upon conviction thereof shall be by misdoers contrary to their will, and sentenced to undergo a confinement afterwards married to such misdoers, in the penitentiary not less than two or to others by their consent, or de- nor more than ten years; provided filed :" “ That whatsoever person or always that this act shall not extend persons shall take any woman to any person taking any woman, only against her will, unlawfully, that is to claiming her as his ward or bondsay maid, widow, or wife, such taking woman." 3 H. 7, cap. 2; 1 Hale, and the procuring and abbetting to 660. See fully post, $ 2671. the same, and also receiving wittingly

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persons shall take any woman against her will,” but, " whatsoever person or persons shall take any woman 80 against her will." h

$ 1203. A woman thus taken against her will and married, may without doubt be a witness against the offender, if the force were continued upon her till the marriage ; because then he is no husband de jure, or of right, and she may herself prove such continuing force. It has been doubted whether, in cases in which the actual marriage is good by the consent of the inveigled woman, obtained after her forcible abduction, her evidence should be allowed. But the opinion appears to have prevailed, that it should even then be admitted ; because otherwise the offender would be permitted to take advantage of his own wrong ; and the very act of marriage, which is a principal ingredient of his crime, would, by a forced construction of the law, be made use of to stop the mouth of the most material witness against him. i There can be no doubt of her competency, where the marriage was against her will at the time, notwithstanding her subsequent assent. For if she were a competent witness at any time after the crime committed, no subsequent assent can incapacitate her, much less can any mere lapse of time; however, these circumstances may and ought to weigh with the jury who are to decide upon the credit of her testimony.

$ 1204. If a woman be forcibly taken in one county, and afterwards go voluntarily into another county, and be there married or defiled with her own consent, it appears that the fact is not indictable in either, for the offence, which consists in the forcible taking and subsequent marriage or defilement, is not complete in either. But if the force is continued upon her at all in the other county, into which she was so taken, the offender may be indicted there, although the actual marriage or defilement afterwards took place with her own consent. k

$ 1205. Though not only the misdoers themselves, but the procurers and any who wittingly receive the woman so taken against her will, are made principals by this statute, yet he who only receives the offender himself is but an accessary after the

h Davis's Criminal Law, 137 ; 1 j East P. C. 454. Post, $ 2691. Hale, 660.

k i Hawk. c. 16, sect. 11; 1 East i 4 Bl. Com. 209; East P. C. 454. P. C. 453 ; 1 Russ. on Cr. 716. See ante, $ 767. VOL. II. - 13

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fact, according to the rules of the common law. And those who are only privy to the marriage, and not to the forcible taking or consenting thereto (which must be inferred, where the woman is under no constraint at the time of the marriage), are not within the statute. I

$ 1206. It is no excuse that the man who marries her was not the author of the original force, or that the woman was first taken

away with her own consent, if she afterwards refused to continue with the offender, and was forced against her will, for from that time she may properly be said to be taken against her will. As little material is it, that a woman taken against her will was at last married or defiled with her own consent, for such case is equally within the words and meaning of the statute, which was made to protect the weaker sex against force and fraud. m

$ 1207. But it need not be alleged or shown, that the taking was with an intention to marry or defile her, for the words of the statute do not require such an intent, nor does the want of it in any way lessen the injury. n

$ 1208. Kidnapping is an offence at common law, o It is the most aggravated kind of abduction, and is punished by fine and imprisonment. p

§ 1209. In order to constitute the offence of kidnapping a child under ten years of

age, it is not necessary that actual force and violence should be used ; nor is a transportation to a foreign country necessary to the completion of the offence. q It is enough to show fraud or undue influence, amounting to a coercion of the will. q?

$ 1210. Where a person having in his custody a mulatto boy, six years of age, who had been placed with him by the overseers of the poor of a town, sold him to a person residing in another state, with the intention that he should be carried into that state, and held in servitude until he arrived at the age of twenty-one years, and he carried the boy into another town and delivered him there, it was held that he was guilty of kidnapping, ?

1 1 Hawk. c. 16, sect. 9, 10; 1 East P. C. 452-3.

m Hawk. c. 16, sect. 7, 8; 1 East P. C. 454. Post, $ 2691.

n 1 Hawk. c. 16, sect. 4, 5, 6; 1 East P. C. 453.

o State v. Rollins, 8 N. Hamp. 550; 1 East P. C. 430.

p 4 Bl. Com. 219. Post, $ 2691. 9

State v. Rollins, 8 New Hamp. 550.

q1 Moody v. People, 20 Ill. 315.

$ 1211. At common law, the offence of kidnapping is treated as an aggravated species of false imprisonment, and all the ingredients in the definition of the latter are necessarily comprehended in the former. The requisites in an indictment would seem to be, an averment of an assault, and the carrying away, or transporting the party injured, from his own country into another, unlawfully and against his will. 8 It is not sufficient to charge the defendant with kidnapping generally; the indictment should state specifically the facts and circumstances which constitute the offence.

$ 1212. The statute 4th & 5th P. & M. ch. 8, against taking away maidens, or marrying them without the consent of their parents, is of force in South Carolina. In an indictment under the third section of the above act, for taking away a young woman under the age of sixteen years, against the consent of her parents, it is necessary to state that the defendant was above the age of fourteen years, and that the person taken away was a maid or woman child under the age of sixteen years. It is not sufficient to describe the latter by her name. u

$ 1213. On an indictment for a conspiracy in inveigling a young girl from her mother's house and reciting the marriage ceremony between her and one of the defendants, a subsequent carrying her off with force and threats, after she had been relieved on a habeas corpus, was allowed to be given in evi

dence. v

r Ibid.

in seducing away a negro from the 3 Click v. State, 3 Texas, 282.

state, &c. 1 State v. O'Bannon, 1 Bail. 144. (200) Abduction under New York » Ibid. Post, $ 2691.

Rev. Stat. vol. 2, p. 553, s. 25. v Resp. v. Hevice et al. 2 Yeates, (201) Abduction of a white person 114; see R. v. Barrett, 3 Boston Law under Ohio Stat. p. 51, sect. 14. R. 281. See forms of indictments in (202) Attempt to carry a white person Wh. Prec., as follows:

out of the state, under Ohio Stat. (198) Misdemeanor in Massachusetts

p. 51, sect. 14. in kidnapping a slave.

(203) Kidnapping. Attempt to carry (199) Misdemeanor in Pennsylvania off a black person, under Ohio Stat.

p. 51, sect. 15.

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CHAPTER VI.

ABORTION.

A. - STATUTES.

[For purposes of brevity, the statutes on this topic are here omitted. They will be found in the sixth edition, $ 1214. For cases arising under them, see Com. v. Wood, 11 Gray, 86; Com. v. Brown, 14 Gray, 419; Com. v. Jackson, 15 Gray, 187; People v. Lohman, 2 Barbour, 216; S. C. 1 Comst. 379; People v. Stockham, 1 Parker C. R. 424 ; Moody v. State, 22 Ohio St. 110; Wilson v. State, 22 Ohio R. 319; Robinson v. State, 8 Ohio St. 132.]

AT COMMON LAW.d

B.

§ 1220. THERE is no doubt that at common law the destruction of an infant unborn is a high misdemeanor, and at an early period it seems to have been deemed murder.e. If the child dies subsequently to birth from wounds received in the womb, it is clearly homicide, f even though the child is still attached to the mother by the umbilical cord.g It has been said that it is not an indictable offence to administer a drug to a woman, and thereby to procure an abortion, unless the mother is quick with child, h though such a distinction, it is submitted, is neither in accordance with the result of medical experience, i nor with the principles of the common law.j The civil rights of an infant in ventre sa mere are equally respected at every period of gestation ; and it is clear that no matter at how early a stage he may

be ap

86;

d See W. & S. Med. Jur. tit. Abor

9 R. v. Trilloe, 2 Moody C. C. 260. tion; and see Elwell's Med. Jur. $ h Com. v. Bangs, 9 Mass. 387. 243, &c.

i 2 W. & S. Med. Jur. § 84 ; Guy's e 1 Russ. on Cr. 671; 1 Vesey, Med. Juris. tit. Abortion; 1 Beck, 172,

3 Coke's Inst. 50; 1 Hawk. c. 13, 192; Lewis C. L. 10. $. 16; 1 Hale, 434; 1 East P. C. 90 ; j i Russ. on Crim. 661 ; 1 Vesey, 3 Chitty C. L. 798.

86; 3 Coke's Inst. 50 : 1 Hawk.c. 13, f R. 1. Senior, 1 Mood. C. C. 346 ; s. 16; Bracton, l. 3, c. 21. 3 Inst. 50. See ante, $ 942.

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