ness is sufficient to prove the crime; corroboration is not required.1

§ 1098. Proof of other acts.-While one act may constitute the crime, yet, as the offense is one difficult of exact proof, other acts of illicit intercourse between the same parties may be shown for the purpose of indicating the nature of the relation of the parties which is claimed to have been adulterous. Thus, proof of indecent or improper familiarity prior to the time when the adultery is charged to have been committed,2 or subsequent thereto, is admissible. And improper conduct, though not such as to be criminal, may thus be proved. So if the offense is by statute continuous in its nature, and the period during which it is charged to have continued is fixed in the indictment, evidence of improper acts between the parties anterior to such time may be admitted in corroboration of the testimony as to later acts, but not as a basis for conviction under the indictment. So evidence of distincts acts so long before the finding of the indictment that a conviction therefor would be barred may be shown as tending to prove subsequent adulterous connection. The presumption in civil cases that criminal intercourse once established continues while the parties live under the same roof is not applicable in a criminal prosecution."

§ 1099. Competency of husband or wife as a witness.— Where the wife is made a competent witness against her husband as to an offense committed by him against her, it becomes a question whether the offense of adultery is one of that character. Some courts hold that she is a competent witness in such a case. But in other cases it is held that such a statutory provision is to be construed as merely embodying the

1C. v. Cregor, 7 Grat. 591.

2 McLeod v. S., 35 Ala. 395; Lawson v. S., 20 Ala. 65; Bodiford v. S., 86 Ala. 67; S. v. Kemp, 87 N. C. 538; S. v. Pippin. 88 N. C. 646; S. v. Guest, 100 N. C. 410.

3 Cole v. S., 6 Baxt. 239, 243; S. v. Bridgman, 49 Vt. 202; S. v. Way, 5 Neb. 283.

4 Alsabrooks v. S., 52 Ala. 24; S. v. Stubbs, 108 N. C. 774.

5 Brevaldo v. S., 21 Fla. 789; Alsabrooks v. S., 52 Ala. 24.

6 S. v. Potter, 52 Vt. 33; S. v. Briggs, 68 Ia. 416.

7 Carotti v. S., 42 Miss. 334.

8 S. v. Bennett, 31 Ia. 24; S. v. Hazen, 39 Ia. 648; S. v. Vollander, 57 Minn. 225; Lord v. S., 17 Neb. 526; Bailey v. S., 36 Neb. 808.

common-law rule by which a wife is a competent witness against her husband in a criminal case only when the crime is one against her person. Of course the party with whom the accused is alleged to have committed the offense is a competent witness.2

260

CHAPTER 48.

ABDUCTION OF FEMALES.

§ 1100. In case of girls.-There have been various statutes in England punishing forcible abduction and marriage of females; but the offense covered by the early statutes involved the motive of lucre. The wrong involved in this crime is apparently to some extent the deprivation of the parent or guardian of the proper control of a minor child, and in England it is criminal at the present time to entice, or to take or detain by force, a child under fourteen years of age, from its parent or guardian; but the statutes in this country usually relate to the abduction of female children under some specified age from the custody of their parents, guardians, or those having the legal right to control them, for the purposes of prostitution or defilement. The offense consists in the taking away for the prohibited purpose, and therefore the crime is committed in the county where the defendant makes advances to the girl, urging her to go away with him, whether the unlawful purpose with which the girl was taken away was carried out in that county or not.5 An analogous offense is that of defiling a female child, committed by one to whom the custody of such child has been intrusted."

§ 1101. From the custody of parent or guardian.— The offense may be committed by taking from the custody of the

14 Bl. Com. 208; 1 Hawk. P. C., § 1; 1 Hale, P. C. 660; Stephen, Dig. Cr. L., art. 261.

Reg. v. Barratt, 9 C. & P. 387. 3 Stephen, Dig. Cr. L., art. 263.

4S. v. Tidwell, 5 Strobh. 1; S. v. Sullivan, 85 N. C. 508; P. v. Chu Quong, 15 Cal. 332. It is also usually made criminal to entice, or take by force, a virtuous female to a house of prostitution: See infra, § 1106a. S. v. Johnson, 115 Mo. 480.

6 S. v. Jones, 16 Kan. 608; S. v. Arnold, 55 Mo. 89; S. v. Buster, 90 Mo. 514. And the statute of Missouri has been extended to cover the case of an employer of a female serv. ant: S. v. Young, 99 Mo. 284; S. v. Strattman, 100 Mo. 540; S. v. Terry, 106 Mo. 209; S. v. Rogers, 108 Mo. 202. In Ohio the statute covers the relation of teacher and pupil: Brown v. S., 38 Ohio St. 374

mother, although the father may be living and have the better right to such custody, and may have given his consent to the taking;1 and the guardian mentioned by the statute is the person who is guardian in fact of the child, though he may not be legally appointed. But the person having a mere temporary charge, as a schoolmaster, is not intended. It is enough, however, that the person is one who, by permission of the parents, if living, is intrusted with the custody of the child as an actual member of the family. So the master by whom a female child is employed may be the person from whose custody she is taken, although she has parents. The female may be in the control of a parent or guardian, so that the crime may be committed although she is temporarily absent from her home, even in another state; and in such case the person who detains her for the purpose of concubinage without the consent of the parent or guardian is guilty of the crime in the state where such detention takes place.

§ 1102. Consent. As usually defined, the offense involves want of consent of the parent or guardian or person from whose custody the child is taken,' but consent of the female herself is immaterial. No matter how willingly she may go, the crime is committed if she is enticed to go without the consent of her

1 P. v. Fowler, 88 Cal. 136. And see Reg. v. Burrell, L. & C. 354.

2 P. v. Carrier, 46 Mich. 442. 3 S. v. Ruhl, 8 Ia. 447.

4 Reg. v. Miller, 13 Cox, 179.

5 Reg. v. Mycock, 12 Cox, 28; S. v. Gordon, 46 N. J. 432; S. v. Round, 82 Mo. 679. So even where the girl was away from home without her father's consent, leading a dissolute and immoral life, the defendant was held guilty in persuading her to go to a house of ill-fame: P. v. Cook, 61 Cal. 478. But under the English statute one who finds a girl in the street and induces her to go with him is not guilty of taking her from the possession of her father: Reg. v. Green, 3 F. & F. 274; Reg. v. Hibbert, L. R. 1 C. C. 184.

6 S. v. Gordon, 46 N. J. 432.

Under some statutes, however, want of consent of the parent need not be alleged, though perhaps consent may be shown by way of defense: S. v. Jamison, 38 Minn. 21; S. v. Chisenhall, 106 N. C. 676. On the question of consent of the parents it has been held admissible to show that the child had, with their knowledge, been an inmate of a bawdy-house: Brown v. S., 72 Md. 477.

8 Scruggs v. S., 90 Tenn. 81; Tucker v. S., 8 Lea, 633. But in the crime of kidnapping want of consent of the person taken is essential, even though a special punishment is provided for the kidnapping of a female under fifteen years of age: Castillo v. S., 29 Tex. Ap. 127. A conviction for the abduction will bar a prosecution for kidnapping: Mason v. S., 29 Tex. Ap.

7 Reg. v. Primelt, 1 F. & F. 50. 24.

legal custodian, and it is not necessary, therefore, that the taking be with force or violence.1

3

2

§ 1103. What constitutes a taking. To induce a female by solicitations and presents to leave her home and go with defendant is a sufficient taking; any representation or suggestion designed to induce the female to go is enough; an open solicitation is not necessary. If the female leaves the control of her parents by reason of persuasions or inducement held out by defendant, he is guilty, though the particular act of leaving home was voluntary on the part of the female, and not by his immediate direction. So, where it appears that defendant assisted the girl in escaping from her home and eloped with her, he was held guilty, although she herself had proposed his rendering such assistance. But if the girl acts of her own free will and without any inducement or assistance of the defendant, he is not criminally liable for the taking.

§ 1104. Purpose of the abduction. According to most of the statutes the abduction, in order to constitute a crime, must be for the purpose of prostitution or concubinage. If the prohibited purpose is that of prostitution, it is not sufficient to show an intent on the part of the defendant to have connection with the girl by himself alone. Prostitution implies indiscriminate sexual intercourse.' If the crime under the statute is that of abduction for the purposes of concubinage, it is not necessary that the intent shall be that the connection shall last for any particular or considerable period of time. It is enough that

1 P. v. Demousset, 71 Cal. 611; P. v. Marshall, 59 Cal. 386; S. v. Keith, 47 Minn. 559; S. v. Jamison, 38 Minn. 21; Reg. v. Frazer, 8 Cox, 446; Reg. v. Mankletow, Dears. 159 (explaining Reg. v. Meadows, 1 C. & K. 399).

2S. v. Johnson, 115 Mo. 480.

3 P. v. Carrier, 46 Mich. 442.

4 Reg. v. Robb, 4 F. & F. 59; Reg. v. Olifier, 10 Cox, 402; Reg. v. Kipps, 4 Cox, 167; Reg. v. Mankletow, Dears. 159. Indeed, it was held criminal to quit a parent's house with the girl even in consequence of a proposition emanating from the girl herself: Reg. v. Biswell, 2 Cox, 279.

5 Reg. v. Robins, 1 C. & K. 456. For other cases under the English statutes, see Reg. v. Hopkins, Car. & M. 254; Reg. v. Baillie, 8 Cox, 238.

6 Jenkins v. S., 15 Lea, 674; S. v. Gibson, 111 Mo. 92; Reg. v. Handley, 1 F. & F. 648; Reg. v. Miller, 13 Cox, 179; Reg. v. Burrell, L. & C. 354; Reg. v. Meadows, 1 C. & K. 399.

7S. v. Brow, 64 N. H. 577; S. v. Stoyell, 54 Me. 24; C. v. Cook, 12 Met. 93; S. v. Ruhl, 8 Ia. 447. Nor is the crime committed by taking the girl in order that a third person may have connection with her on one occasion: Haygood v. S., 98 Ala. 61.