Opinion
Argued March 19, 1888
Decided April 10, 1888
John D. Townsend for appellant.
James Fitzgerald for respondent.
The indictment, in the first count, charges that the defendant, on the 1st day of September, 1886, at the city of New York, with force and arms, did "feloniously and willfully inveigle and kidnap one Sarah Bowes, with intent to cause her, the said Sarah Bowes, without authority of law, to be taken out of the state, and to be kept and detained against her will." The second count is like the first, except that it charges that the intent of the defendant was to send the said Sarah Bowes, against her will, to Aspinwall, in the state of Panama. The evidence on the part of the prosecutor, which was uncontradicted, shows that the defendant, under the false pretense that employment had been secured for her as a governess in the family of one Madame De Blen, at Panama, induced the prosecutrix to take passage on a steamer for Aspinwall, for the purpose of engaging in that service, when, in truth and in fact, the said Madam De Blen was the keeper of a house of prostitution at Panama, for which the defendant acted as procurer, and that his object and purpose in inducing the prosecutrix to go to Panama were that she should become an inmate of such house. Fortunately, before reaching Aspinwall, the prosecutrix was apprised of the true character of Madame De Blen, and, by the aid of fellow passengers, was enabled to return to New York, and was thereby rescued from the fate to which the defendant sought to consign her. The only serious question is, whether the evidence made out an offense within section 211 of the Penal Code. The section defines the crime of kidnapping, and, in the first subdivision, declares that a person who "seizes, confines, inveigles or kidnaps another with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service, or kept, or detained against his will," is guilty of kidnapping.
There was no actual confinement or detention of the prosecutrix, nor any actual force used by the defendant. The prosecutrix consented to go to Aspinwall and voluntarily took passage for that port. But she did not consent to go there to enter a house of prostitution. The evidence shows that she would not have consented to go at all, except for the fraud practiced upon her by the defendant. She consented to go for a lawful and innocent purpose, and the defendant, knowing that she was seeking honest employment, procured her consent to leave the state under pretense that such employment had been secured for her, but secretly designing that she should become an inmate of a brothel. He doubtless supposed that the prosecutrix, finding herself helpless and friendless in a foreign land, without means or chance of succor, would yield to his nefarious design. The statute uses, among other words, the word "inveigle." There are two elements which must be found in the conduct of the defendant to constitute the offense, first, seizure, confinement or kidnapping, which ordinarily imply actual force or an inveiglement, which in the ordinary sense of the word implies the acquiring of power over another by means of deceptive or evil practices, not accompanied by actual force; and, second, an intent by the defendant to cause the prosecutrix to be sent out of the state against her will. There was, as has been said, no actual force. There was fraud and deception by which the will of the prosecutrix was subjected to that of the defendant and made subject to his control, which satisfies, we think, the charge of inveiglement in the indictment and establishes the first of the two elements mentioned. The second essential element of the crime, viz., an intent to cause the prosecutrix to be sent out of the state against her will, is less plainly disclosed in the evidence, and raises a question of more difficulty. It does not appear that the defendant contemplated using actual force at any time. But he did contemplate procuring the prosecutrix to consent to go out of the state, and this by means of fraud and deception, without which he knew that she would not consent. Did the defendant, under the circumstances, intend that the prosecutrix should be sent out of the state against her will, within the meaning of the statute, or is the statute only applicable where the intent to cause another to leave the state contemplates physical coercion to that end? In Regina v. Hopkins (Car. M. 254), the case of an indictment for the abduction of an unmarried girl under sixteen years of age, "against the will" of her father, it appearing that the consent of the parents was induced by fraud, the indictment was sustained, and GURNEY, B., said, "I mention these cases to show that the law has long considered fraud and violence to be the same." The language is very comprehensive, and if taken in its broadest meaning seems scarcely consistent with the English cases which hold that the false personation of the husband, whereby a married woman consents to intercourse with a stranger, does not constitute a ravishment of the wife. ( Reg. v. Clark, 6 Cox C.C. 412; Reg. v. Young, 14 id. 114.) In Queen v. Dee (Crown Cases Reserved, Ireland Crim. Law Mag., vol. 6, p. 220 [1884]), the court refused to follow the English cases and adopted the contrary view upon what seems to us very satisfactory grounds. The case of Beyer v. People ( 86 N.Y. 369), is quite apposite on the question of what constitutes a taking "against the will." The defendant in that case was indicted under a section of the Revised Statutes, which declared that "every person who shall take any woman unlawfully against her will, with intent to compel her by force, menace or duress, to marry him, or to marry any other person, or to be defiled," etc., shall, upon conviction, be punished, etc. It was held that the defendant having, by the false representation that he had procured for the prosecutrix a situation as a servant in a respectable family, induced her to go with him to a house of prostitution with intent to compel her to be defiled, was guilty under the statute, and that the inducing the prosecutrix to accompany him under the circumstances was a taking "against her will" within the statute. The principle decided covers the present case. The consent of the prosecutrix, having been procured by fraud, was as if no consent had been given, and the fraud being a part of the original scheme, the intent of the defendant was to cause the prosecutrix to be sent out of the state against her will. We think this construction of section 211 is not inconsistent with section 213. That relates to a consent to the very purpose of the defendant. The examination of the witness Bonsall as to confessions of the defendant, was carried perhaps beyond the legal limit. Part of the evidence of this witness was clearly competent, and this and the other evidence in the case, none of which was controverted, clearly established the crime charged, and the error, if any, did not prejudice the defendant.
The judgment should be affirmed.
All concur.
Judgment affirmed.