Opinion
December 19, 1939.
Judgment of the County Court of Suffolk county convicting the defendant of the crime of kidnapping reversed on the law and the facts, the indictment dismissed on the law, and the defendant discharged from custody. The proof is sufficient to enable the jury to find that the defendant, in order to procure dismissal of a criminal proceeding against the defendant's partner, instituted by one Mrs. Johnson, a feeble-minded woman, because of her failure to appear and prosecute, took Mrs. Johnson from Suffolk county to the House of Good Shepherd in Brooklyn, New York, ostensibly for the purpose of obtaining care and treatment for Mrs. Johnson. There is no proof that Mrs. Johnson was confined or detained at the institution against her will. The gravamen of the offense of kidnapping is a willful intent to confine or imprison another, without authority of law. ( People v. Weiss, 276 N.Y. 384, 386, 387.) Even though this woman may be found to have been incapable of expressing a desire to leave the institution, that fact is immaterial in the absence of a showing that had she been capable of leaving or had expressed a desire to leave she would have been detained against her will. The questions of intent and detention must be weighed in the light of the particular facts presented in each case. ( People v. Camp, 139 N.Y. 87, 92, 93.) Under the circumstances here presented we are of opinion that a conviction of the crime of kidnapping is not warranted. Hagarty, Carswell, Adel, Taylor and Close, JJ., concur.