her; (5) or who shall unlawfully, either by force or fraud, lead or take away, or decoy or entice away or detain, any child under the age of fourteen years, with intent to deprive any parent, guardian, or other person having the lawful care or charge of such child of the possession of such child, or with intent to steal any article upon or about the person of such child, or any person who shall with such intent, and with knowledge of the facts, receive or harbor any such child. In the section last mentioned there is an exception in favor of persons claiming to be the father of an illegitimate child.173

Statutes in This Country.-In this country the statutes vary greatly in the different states. Some of them embrace provisions contained in the English statute above set out. Others are very different. It would serve no useful purpose to set out these statutes, and no general statement can be made as to their provisions. The student therefore must consult the statute of his own state.

174

232. Construction of the Statutes.

Under a statute punishing any person who shall unlawfully take or cause to be taken any unmarried girl under a certain age out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, the taking must be a taking under the power, charge, or protection of the taker.175 And generally under the statutes

173 24 & 25 Vict. c. 100, §§ 53-56.

174 As to these statutes generally, see 1 Am. & Eng. Enc. Law (2d Ed.) 173 et seq.

175 Steph. Dig. Crim. Law, art. 262. Where two girls under sixteen years of age run away from home together, neither is guilty of the abduction of the other. Reg. v. Meadows, 1 Car. & K. 399, Dears. C. C. 161, note.

A man is not bound to return to her father's custody a girl who, without any inducement on his part, has left her home, and has come to him; but if, at any time, he has attempted to induce her to leave home, without her parents' consent, and she afterwards does so, he is

C. & M. Crimes-20.

there must be some taking or enticing, and not merely a receiving or harboring. 176 It is generally immaterial whether the girl is taken with her consent or at her own suggestion, or against her will.177

The fact that the taker believes in good faith that the girl is above the age mentioned in the statute is no defense;178 but it seems to be necessary that he shall know or have reason to believe that she is under the lawful care or charge of her father, mother, or some other person.179 It also seems that there must be some improper motive.180 Though it is immaterial whether

guilty of abducting her, even though he disapproves of the act at the particular time at which she gives effect to his previous persuasions. Reg. v. Olifier, 10 Cox, C. C. 402. See, also, People v. Parshall, 6 Park. Cr. R. (N. Y.) 129.

176 Reg. v. Olifier, 10 Cox, C. C. 402 (preceding note); Reg. v. Hibbert, L. R. 1 C. C. 184, 11 Cox, C. C. 246; Reg. v. Green, 3 Fost. & F. 274; People v. Plath, 100 N. Y. 590, 3 N. E. 790, 53 Am. Rep. 236; People v. Parshall, 6 Park. Cr. R. (N. Y.) 129.

177 Where a girl under sixteen asked a man, by whom she had been seduced, to elope with her, and he did so, it was held that he was guilty of abduction. Reg. v. Biswell, 2 Cox, C. C. 279. See, also, Reg. v. Robins, 1 Car. & K. 456; Reg. v. Kipps, 4 Cox, C. C. 167; People v. Cook, 61 Cal. 478; Tucker v. State, 8 Lea (Tenn.) 633; Griffin v. State, 109 Tenn. 17, 70 S. W. 61; State v. Stone, 106 Mo. 1, 16 S. W. 890; State v. Bobbst, 131 Mo. 328, 32 S. W. 1149; State v. Bussey, 58 Kan. 679, 50 Pac. 891; Gould v. State (Neb.) 99 N. W. 541.

It is otherwise under some statutes. See Lampton v. State (Miss.) 11 So. 656; State v. Hromadko, 123 Iowa, 665, 99 N. W. 560.

178 Reg. v. Prince, L. R. 2 C. C. 154, 13 Cox, C. C. 138, Mikell's Cas. 173; Reg. v. Robins, 1 Car. & K. 456; Reg. v. Olifier, 10 Cox, C. C. 402; Reg. v. Mycock, 12 Cox, C. C. 28; People v. Fowler, 88 Cal. 136, 25 Pac. 1110; State v. Johnson, 115 Mo. 480, 22 S. W. 463. Contra, Mason v. State, 29 Tex. App. 24, 14 S. W. 71.

179 Steph. Dig. Crim. Law, art. 262. Thus, where a man met a girl under sixteen in the street, and got her to stay with him for several hours, during which time he seduced her, and then took her back to the place where he found her, and she returned home, but he was not aware at the time that she had a father or mother living, it was held that he was not guilty of abduction. Reg. v. Hibbert, L. R. 1 C. C. 184, 11 Cox, C. C. 246. See, also, Reg. v. Green, 3 Fost. & F. 274. 180 Thus, in Reg. v. Tinkler, 1 Fost. & F. 513, Beale's Cas. 285, where

the purpose be accomplished.180a Under some of the statutes it is immaterial whether the girl was previously chaste.180b

The expression "taking out of the possession" means taking the girl to some place where the person in whose charge she is cannot exercise control over her, for some purpose inconsistent with the objects of such control.181 Where a lady persuaded a girl under sixteen to leave her father's house and come to her house for a short time, for the purpose of going to the play with her, it was held that there was no abduction.182 A taking for a short time only may amount to an abduction. Thus, where a man persuaded a girl to leave her father's house and sleep with him for three nights, and then sent her back, it was held an abduction.183 When the taking is required, as in the English statute, to be against the will of the father or other person having the care or charge of the girl, the taking must be without his consent. But it is not necessary, unless expressly required by the statute,

the defendant was indicted for the abduction of a girl under sixteen, and it did not appear that he had any improper motive, the jury was directed to acquit him if they thought he merely wished to have the child to live with him, and honestly believed that he had a right to the custody of the child, although he might have had no such right. Compare, however, Reg. v. Booth, 12 Cox, C. C. 231.

180a It does not matter that sexual intercourse did not follow the taking. State v. Bobbst, 131 Mo. 328, 32 S. W. 1149; State v. Rorebeck, 158 Mo. 130, 59 S. W. 67.

18ob State v. Bobbst, 131 Mo. 328, 32 S. W. 1149.

Especially if she was chaste as to all but the abductor. South v. State, 97 Tenn. 496, 37 Ś. W. 210.

In some states chastity is required. Bradshaw v. People, 153 Ill. 156, 38 N. E. 652.

181 Steph. Dig. Crim. Law, art. 262. See Slocum v. People, 90 Ill. 274. A girl who is away from her home is still in the custody or possession of her father, if she intends to return to her home. Reg. v. Mycock, 12 Cox, C. C. 28.

182 Steph. Dig. Crim. Law, p. 199; Reg. v. Timmins, Bell, C. C. 276, 8 Cox, C. C. 401.

183 Reg. v. Timmins, Bell, C. C. 276, 8 Cox, C. C. 401. See, also, Reg. v. Baillie, 8 Cox, C. C. 238; South v. State, 97 Tenn. 496, 37 S. W. 210.

to show a trespass or force, or anything of that nature, in the taking. Persuasion or enticement is sufficient.184

If the consent of the person from whose possession the child is taken is obtained by fraud, the taking is against his will, within the meaning of the statute.185

Enticement for the Purpose of Prostitution or Concubinage. -It has been held that, to constitute the statutory offense of enticing or taking away an unmarried female "for the purpose of prostitution," the enticement or abduction must be for the purpose of making a "common prostitute" of the woman, and that a man is not guilty of this offense where he entices or abducts a female for the purpose of illicit intercourse with himself alone, for the term "prostitution" imports the practice of a female offering her body to an indiscriminate intercourse with men, the common lewdness of a female. 186

184 Reg. v. Frazer, 8 Cox, C. C. 446; Reg. v. Hopkins, Car. & M. 254; Reg. v. Biswell, 2 Cox, C. C. 279; Reg. v. Kipps, 4 Cox, C. C. 167; Reg. v. Robb, 4 Fost. & F. 59; State v. Gordon, 46 N. J. Law, 432; People v. Carrier, 46 Mich. 442, 9 N. W. 487; State v. Johnson, 115 Mo. 480, 22 S. W. 463; State v. Chisenhall, 106 N. C. 676, 11 S. E. 518; Mason v. State, 29 Tex. App. 24, 14 S. W. 71; State v. Jamison, 38 Minn. 21, 35 N. W. 712; State v. Bussey, 58 Kan. 679, 50 Pac. 891.

185 Thus, when a man induced a girl's father to permit her to go away by falsely pretending that he would find a place for her, he was held guilty of abduction. Reg. v. Hopkins, Car. & M. 254. See, also, People v. Lewis, 141 Cal. 543, 75 Pac. 189. 186 State v. Stoyell, 54 Me. 24, 89 Am. Dec. 716. In this case, a statute punished any person who should fraudulently and deceitfully entice or take away an unmarried female "for the purpose of prostitution at a house of ill fame, assignation, or elsewhere," etc. The de fendant had, by false representations, induced a female to go with him to a neighboring town, where, having induced partial intoxication, he had repeated sexual intercourse with her. It was held that this was not within the statute, as his purpose was not to make her a common prostitute, but to have intercourse with her himself only. See, also, Haygood v. State, 98 Ala. 61, 13 So. 325; Nichols v. State, 127 Ind. 406, 26 N. E. 839; State v. Rorebeck, 158 Mo. 130, 59 S. W. 67.

Detention for the purpose of prostitution does not occur where a stepfather detains his stepdaughter in his own house for the purpose

When the statute punishes a taking for the purpose of concubinage, this purpose must be shown.187 The courts, however, do not agree as to what constitutes a taking for the purpose of concubinage. Some of them require more than a single act of intercourse, while others do not.188 In some jurisdictions the term has been held to apply to any lewd intercourse between the parties. 189

VI. HOMICIDE.

(A) The Homicide.

233. Definition.-Homicide is any killing of a human being.189a It is either

1. Justifiable,

2. Excusable, or

3. Felonious. And a felonious homicide is either

(a) Murder, or

(b) Manslaughter.

To constitute a homicide, and to render a person accused responsible at all, aside from any question as to whether he is guilty of murder or manslaughter, or whether the homicide is justifiable or excusable,

1. The killing must be of a living human being, and not of a child unborn. Any human being is the subject of a homicide.

of having intercourse with her himself. Bunfild v. People, 154 Ill. 640, 39 N. E. 565.

187 State v. Gibson, 108 Mo. 575, 18 S. W. 1109.

188 See State v. Gibson, 111 Mo. 92, 19 S. W. 980; State v. Johnson, 115 Mo. 480, 22 S. W. 463; State v. Wilkinson, 121 Mo. 485, 26 S. W. 366; State v. Rorebeck, 158 Mo. 130, 59 S. W. 67. See, also, State v. Richardson, 117 Mo. 586, 23 S. W. 769; Slocum v. People, 90 Ill. 274; Henderson v. People, 124 Ill. 607, 17 N. E. 68, 7 Am. St. Rep. 391; State v. Overstreet, 43 Kan. 299, 23 Pac. 572; State v. Bussey, 58 Kan. 679, 50 Pac. 891.

189 People v. Cummons, 56 Mich. 544, 23 N. W. 215.

189a It must be done by man, for "if it be done by an ox, a dog, or other thing, it is not properly termed homicide." Bract. f. 120b, Mikell's Cas. 551.