Decided January 3, 1950.
The phrase "any minor child" in the statute (R. L., c. 455, s. 20), providing punishment for kidnaping a minor, means any child under twenty-one years of age. In an indictment under the statute for kidnaping a minor child while it was in the custody of the State Industrial School the fact that the child gave its consent is immaterial. An indictment, reciting that the respondent committed the crime of kidnaping by concealment and by inveiglement, is sustained where there is evidence of the unlawful use of either. Where an indictment recites various methods employed by the respondent to commit a crime, the State is not obliged to elect as among them the one by which it will prove the commission of the offense. The fact that the respondent without knowledge of authorities of the State Industrial School took a minor female child into his car from the grounds of such school where she was committed and drove her over back roads into another state with the result that she was not apprehended for over a month is sufficient evidence to justify a finding of unlawful concealment under the statute (R. L., c. 455, s. 20). In such case, the respondent likewise could have been found, under all the circumstances, to have inveigled the minor female child into leaving the school where respondent's primary purpose in taking her away through a pre-arranged plan was to render more difficult the prosecution of pending charges against him of rape upon her. A respondent who was indicted, with another, as a principal to the crime of kidnaping but who was not present at the time the kidnaping took place is entitled to discharge from the indictment. However, the discharge of the respondent from the indictment as principal does not preclude the seeking of an indictment against him as an accessory. The statute (R. L., c. 459, s. 1) does not abolish the distinction between principal and accessory.
INDICTMENT, under R. L., c. 455, s. 20 for kidnaping a minor. Frank Lacoshus and Henry Daigle, hereinafter called the defendants, were indicted jointly with one Burelle. The defendants were tried together by jury and the trial resulted in a disagreement.
The pertinent part of the indictment is as follows:
". . . that Frank Lacoshus, Henry Daigle, and Roger R. Burelle of Nashua in the County of Hillsborough, aforesaid, on or about the 9th day of August in the year of our Lord one thousand nine hundred and forty-eight at Manchester in the County of Hillsborough, aforesaid, with force and arms did unlawfully conceal, inveigle one Elaine Morin, a minor child, under the age of eighteen years, to wit, fifteen years old, with the intent thereby to keep or conceal her from her legal custodian the keeper of the State Industrial School at Manchester, out of said State of New Hampshire for a long space of time, to wit: from on or about August 9, 1948, until on or about September 12, 1948, to a place called Atlanta in the State of Georgia, to a place called Hartford in the State of Connecticut, to a place called Lawrence in the State of Massachusetts."
Some of the alleged facts are here briefly stated and others will appear in the opinion. April 22, 1948 the defendants were separately charged in the municipal court of Nashua with having committed statutory rape upon one Elaine Morin on March 8, 1948 and on March 28, 1948, respectively. April 23, 1948, three days before her fifteenth birthday, the said Elaine Morin was committed to the State Industrial School as a delinquent child for and during the term of her minority. August 9 of the same year, Elaine was taken by the defendant Daigle without permission of the authorities from the school grounds to Lawrence, Massachusetts, then to Boston where the defendants and the girl spent the night at a hotel. August 11 Lacoshus took the girl by airplane from Boston to Hartford, Connecticut. A few days later Daigle took her to New York in his car, and then she and Daigle flew to Atlanta, Georgia. She was taken to the house of a brother-in-law of Daigle. On August 22, 1948 she married Lacoshus after she had been told that, if she did so, nothing could be done to the three of them. After returning to New England, the girl was taken into custody by officers on September 12, 1948 from a care in Lowell, Massachusetts.
Of the questions reserved by the Court (Wescott, J.), the only ones argued in this court are those raised by the exceptions to the denial of the motions for a discharge at the close of the evidence for the State and at the close of all the evidence.
William L. Phinney, Attorney-General, William H. Craig, County Solicitor, and Warren E. Waters (Mr. Phinney orally), for the State.
Robert J. Doyle (by brief and orally), for the defendants.
In view of the fact that the defendant Locoshus was not present at the time the girl was taken from the school grounds in Manchester and did not join her and Daigle until evening of that day of August 9 in Boston, the charges against the two defendants will be treated separately. The case of Henry Daigle will be considered first.
In Petition of Morin, 95 N.H. 518, this court held that Elaine Morin was legally committed to the custody of the State Industrial School. No claim is made that the consent of those in charge of the school was obtained for her leaving on the morning of August 9, or that they even knew of it at the time. It positively appears otherwise.
The phrase "any minor child" in the statute means any child under twenty-one years of age. People v. Edenburg, 88 Cal.App. 558, 566.
Although the elements of the crime charged must be proven, the fact that the child went willingly is no defense. "The consent of the person so taken is, as a rule, immaterial, since, usually, only the parent or guardian can give consent." 2 Burdick, Law of Crime, 61. State v. Suennen, 36 Idaho 219. "The consent of a minor child is no defense to the charge of kidnapping if the parent or guardian does not consent." Id., 223. The crime is against the parent or guardian as well as the child.
The indictment alleges two ways in which the offense was committed, those of concealment and of inveiglement. The charge is sustained if there was evidence of the unlawful use of either. The State is not obliged to elect the method by which it will prove the commission of the offense. State v. Metcalf, 129 Or. 577, 593.
There was evidence from which it could be found that the girl was unlawfully concealed from her legal custodian. Without any knowledge of the school authorities, she was taken into the Buick convertible of the defendant Daigle from the grounds of the school in Manchester as she was walking from the main building to the house occupied by the superintendent. The defendant Daigle drove her away and by back roads took her quickly out of the state with the result that she was not apprehended for over a month. "But it is not necessary that the person taken be detained for any particular length of time, and it is immaterial whether the defendant intended to detain him for a few hours, or a few days, or permanently." 2 Brill, Cyclopedia Criminal Law, 1217.
The following definition of the word "concealment" as used in an act of Congress, found in 8 Words and Phrases (Perm. ed.) 328, 329, is applicable to the present situation: "What amounts to a concealment, under a law of Congress prohibiting any person from harboring fugitive from justice, etc., may depend much on the circumstances. It does not necessarily require that the subject of it be secreted in a garret, cellar, barn, or covered wagon. The highway remote and uncultivated country like Indiana may be a better place of concealment than the highway of many other places, and the limits of the whole country as good a place to secrete a fugitive from a distant state as any that could be imagined, especially if the fugitive have a committee of sympathizers to watch over his interests and give him warning of the approach of danger. Van Metre v. Mitchell, 28 Fed. Cas. 1036, 1040."
The jury could have found that the defendant Daigle inveigled Elaine into leaving the school. "The word `inveigle,' in its ordinary acceptation, carries the idea of deception for the accomplishment of an evil purpose. . . ." State v. Rivers, 84 Vt. 154, 157. That the purpose was not merely to aid an inmate in escaping from the industrial school but was primarily to assist the defendants in avoiding the just penalties of the charges brought against them in the municipal court of Nashua, could well be found. At the time Lacoshus was thirty-three years of age and Daigle thirty years of age in contrast to the age of fifteen years for the girl. There had been communication with Elaine prior to the 9th and she knew that she was going to be picked up sooner or later and she had an idea that it would be on the date Daigle met her. The latter's Buick convertible was used and Elaine's brother Norris was present in the car. He was the first person to ask her to get into the car. It could be found that his presence was not for her benefit but for the purpose of a decoy. After she was in, Daigle promised that he would take care of her. She did not know where she was going, and it is a reasonable inference that she did not know before leaving New Hampshire that the matter of her marriage to Lacoshus was seriously considered.
That the defendants intended to keep or conceal Elaine from her legal custodian is apparent from the transportation of her to various cities outside the state including Atlanta, Georgia, the boarding of her in hotels and private homes, the change of her institutional clothing for other apparel, her entertainment, the spending of money upon her and the marriage to Lacoshus.
Although the defendant Lacoshus was indicted as a principal, he was not present at the alleged kidnaping of the minor child in this state. As already stated, he did not join Daigle and Elaine until the evening of the 9th at Boston, Massachusetts. Accordingly he could not be found guilty as a principal and is entitled to be discharged.
It was held in State v. Rand, 33 N.H. 216, that the statute (now R. L., c. 459, s. 1) does not abolish the distinction between principal and accessory. "When the accessory is tried before conviction of the principal, the guilt of the principal is a material fact for the prosecution to establish, and must be proved by competent evidence." Id. 224. "The distinction between principals and accessories before the fact has frequently been criticized as having no logical foundation, but has been considered to be too thoroughly established to be overturned by judicial action. `It is the general doctrine that a person indicted as principal cannot be convicted upon evidence tending merely to prove him an accessory before the fact.' State v. Larkin, 49 N.H. 36, 38; State v. Buzzell, 58 N.H. 257." State v. Demos, 81 N.H. 318, 321.
It has been more than twenty-five years since it was emphasized in the Demos case, supra, that there is little logical foundation for the distinction between principal and accessory but now, as then, any improvement in line with modern criminal procedure requires legislative rather than judicial action.
The discharge of Lacoshus will not preclude the State, if it has sufficient evidence to warrant it, from seeking an indictment against him as an accessory, since no double jeopardy is involved. R. L., c. 459; State v. Moore, 93 N.H. 169; State v. Buzzell, supra, 258.
Exceptions overruled as to Daigle and sustained as to Lacoshus.