
    Hadden v. The People.
    Procuring the intoxication of a sailor with the design of getting him on shipboard without his consent, and taking him on board in that condition, is kidnapping, under our statute (2 E. S., p. 664, § 28); and it is immaterial whether the offender did the acts, or any of them, in person, or caused them to be done.
    Where the intent and expectation is that the seaman will be carried out of this State, the offence is complete although the -ship be not, in fact, destined to leave the State.
    Parol evidence' is admissible of the destination of the ship, though the witness giving it state that he had cleared her at the custom-house, and the clearance was in writing.
    The plaintiff in error, Hadden, was convicted, in the Court of General Sessions of the Peace of the city of New York, in November, 1855, upon an indictment charging that he did, ■ on the 28th day of September, 1855, in the first ward of that city, “with force and arms, and without lawful authority, willfully, unlawfully and feloniously, kidnap one Eobert Wallace, then and there being, with intent to cause the said Eobert Wallace to be sent out of the State of Hew York, against his will, against the form of the statute,” &c. A second count charged the doing of the same acts, “ with intent to cause said Eobert Wallace to be held to service against his will, to wit, as a seaman on board of a certain vessel called the West Point, against the form of the statute,” &c. A bill of exceptions was taken upon the trial; and, upon the removal of the record, by certiorari, into the Supreme Court,, a new trial was denied, and the prisoner sentenced, by that court, to two years’ imprisonment in the State Prison. To review that judgment, Hadden sued out this writ of error.
    It appears,- by the bill of exceptions, that Wallace, who was not acquainted. with Hadden, first saw him, on the 29th of September, 1855, in the city of Hew York, near Fulton Market Hadden inquired of Wallace to what ship he belonged ; Wallace replied, to none; that he had just been paid off from the San Jacinto man-of-war, at the Brooklyn navy yard, and was going over to see some of his shipmates. Hadden said he was going over, too, to see some of his boys, and would take him (Wallace) in his boat, and save him ferriage; to which Wallace assented. Another man then came along, and conversed apart with Hadden, Wallace not hearing what was said. Hadden then requested this man to take Wallace to his (Hadden’s) house, saying he would be there in a few moments. The two went to the house, and went up stairs; and, after drinking twice, Wallace, at the end of about half an hour, went down stairs, and Hadden had not then come. Wallace was thbre met by a boatman and a boy, who, he testified, wanted him to go in his boat. To the evidence of what the boatman said, the prisoner’s counsel objected, on the ground that the prisoner was not present, nor proved to have been connected, in any way, with the boatman. The court sustained the objection; but said the acts of the boatman-would be evidence, provided the jury believed there was a-connection between them. To this decision, the prisoner’s counsel excepted.
    Wallace went again up stairs, and dined; and, soon after-wards, Hadden came in and inquired how he got along, and if he would drink; he said yes, and did so. After that, Had-den told him he was going, right off; and the three, Hadden, Wallace, and the person they met in the street, went down stairs together; and then Wallace became confused, and did not know what afterwards occurred, until the next day, when he found himself in the forecastle of the ship West Point.
    Dennis Meehan testified that, on the 29th day of September, as he was going toward Peck slip, he met Hadden, who then kept a sailors’ boarding house; and Hadden asked him if he wanted to ship. He went to Hadden’s house; saw Wallace there; and Hadden soon came in, and said to Wallace, “Come along, I have a boat ready for you;” he then gave Wallace something to drink, and, taking hold of his shoulder, they went out. A few minutes afterwards, Hadden came in, together with another man, whom the witness calls “a runner; ” and Hadden said to him, “ Have you put the man on board the ship?" The runner said, “Yes, I,left him on board.” Hadden then said, “ It’s all right.” Wallace testified that he did not consent to ship on board the West Point. Another witness saw Wallace on board the West Point, and the next day was on board again, and Wallace was brought ashore by two officers. The first mate of the West Point testified that Wallace was on board of that ship, but he did not know who brought him there; .that Hadden had brought some men to the ship.
    On this evidence the prosecution rested, and the counsel for the prisoner commenced his argument for the defence, and remarked to the jury that there was no evidence showing that Wallace was on board the vessel against his will, or that the ship was going to leave the State. The district attorney then asked and obtained leave to prove that the ship was bound on a voyage out of the State; the defendant’s counsel objecting, and excepting to the decision, on the ground that the evidence had been closed. The district attorney then called a witness, and offered to prove by him. that the ship was a Liverpool packet and destined on a voyage out of the State. This was objected to, on the ground that the best evidence of the. destination of the vessel was in writing, and in the custom house. The objection was overruled, and the defendant’s counsel excepted. The witness testified that the West Point was a Liverpool packet, and had cleared at the custom house for Liverpool; that he cleared her for the owners; that such clearance was in writing, and the documents relating to her voyage were in the custom house; that he was not owner or part owner of the vessel, and all he knew about her port of destination was by hearsay; that she was a regular Liverpool packet. The defendant’s counsel again objected to this testimony : the objection was overrruled, and the decision excepted to.
    The defendant’s counsel requested the court to charge the jury:
    1. That there was no proof in the case that Wallace was
    forcibly seized, or inveigled, or kidnapped. ,
    2. That even if the jury believed that the prisoner was present when Wallace left his house, and that, when the runner came back, the prisoner asked him, “ have you put the man on board? ” there is still a failure to show that Wallace was the man intended or referred to.
    3. That there was no evidence that Wallace was- put on board the West Point by the prisoner, or with his knowledge, or by his procurement.
    4. That there was no proof that Wallace was unwilling to go out of the State; and that he being a seafaring man by profession, the presumption of law is that he was willing to pursue his vocation, and that in this case the presumption is strengthened by the fact that he was then out of a situation.
    5. That there was no evidence that what was said by Meehan to have occurred between the runner and Hadden, had reference to taking Wallace on board the ship West Point.
    6. That no act was proved to show that the prisoner put Wallace on board of the ship with intent to cause him to be sent out of this State, or against his will, or to cause him to be held against his will.
    7. That no sufficient evidence was shown that Wallace was • put on board against his will..
    8. That no sufficient evidence was shown that any coercion was used to restrain Wallace on board the vessel against his will.
    9. That no presence of the prisoner, or assent to the putting on board of Wallace by the prisoner, was proved.
    10. That no sufficient evidence was given that the ship -was . destined to leave the State.
    The court refused to charge the jury as requested, on the ground that each request presented a mere question of fact for the consideration of the jury, and not a question of law. The defendant’s counsel excepted to the refusal as to each request
    
      Francis Byrne, for the plaintiff in error.
    
      A. Oakey Hall, District Attorney, for The People.
   Selden, J.

The statute under which the - conviction was had in this case, is as follows:

“ Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other, with intent, either,

1. • To cause such other person to be secretly confined or imprisoned in this State against his will; or,

“ 2. To cause such person to be sent out of this State against his will; or,

“ 3. To cause such person to be sold as a slave, or in any way held to service against' his will, shall, upon conviction, be punished by imprisonment in a state prison, not exceeding ten years.” (2 R. S., 664, § 28.)

The indictment charges the plaintiff in error with having kidnapped Wallace, with intent to cause him to be sent out of this State against his will; and (in the second count) with intent to cause him to be held to service against his will, as a seaman .on board the West Point. There is no charge of “ inveigling,” but of kidnapping only, and the principal question in the case, arising out of the several requests of instructions- to the jury, is, whether there was such an entire want of evidence of the kidnapping of Wallace by Hadden, or by his procurement, or of the intent charged in either count of the indictment, as to require the court to give to the jury any of the specific instructions asked for by the defendant’s counsel.

The slightest examination of the case is sufficient to show that there was evidence bearing upon both these points, the sufficiency or insufficiency of which it was the province of the jury to decide, and that the instructions asked for were properly refused. Whether the promise of the prisoner to take Wallace to Brooklyn, not acted upon, was a promise i,n good faith, or intended merely' to bring him under his influence ; whether giving him drinks were friendly acts, or designed to produce stupefaction; whether there was a secret understanding or conspiracy between the prisoner and the person who guided Wallace to his house, and aided in producing his intoxication, and also between him and the “ runner,” to get Wallace on board -the vessel against his will, or whether the circumstances proved tending to such conclusions were merely accidental; and whether the inquiry addressed to the “runner,” as to putting the man on board the vessel referred to Wallace or to some other man, were all matters for the decision of the jury, and which the court could not properly withdraw from them. An inference against the prisoner on these points involved, as I think, his conviction of the offence. Procuring the intoxication of Wallace, with the design of getting him on board the ship in that condition, without his consent, and thus taking him on board, was a kidnapping within the meaning of the statute, as much so as if it -had been done by force, overcoming his resistance when in full strength; and it was immaterial whether the prisoner did the acts in person, or caused or advised their being done. All the acts which the evidence shows were done by the plaintiff in error might, no doubt, have been done without the criminal intent pointed out in the statute; but, in that case, some circumstances would naturally have appeared, indicating the good faith of the acting party. Unfortunately for the plaintiff in error, all.the circumstances, so far as they are disclosed, lead directly to the conclusion that his intention was in conflict with the statute. No object for the deception and wrong which was practised upon Wallace can be discovered, except to have him. sent out of the State or held to service as a sailor, against his will, on board the West Point. The prisoner’s counsel, in asking the instruction, the correctness of which was admitted, “that the business of providing ships with sailors was a lawful business,-” in substance assumed that such was the intention. If he was sent there to become a sailor, he was to be made such against his will. I think there was not only some evidence to be submitted to the jury on all the points on which instructions were asked, but that the evidence was fully sufficient to justify their verdict.

It was discretionary with the court, before which the trial was had, to allow or refuse the introduction of further testimony, after the summing up had commenced, and the exercise of that discretion this court cannot review.

The exception to the decision that the acts of the boatman would be evidence, provided the jury believed there was a connection between him and the prisoner, is too clearly untenable to need comment. The decision was right in itself, and if wrong no evidence was given under it, which renders the exception unavailable, if otherwise well taken. (9 N. Y., 170.)

It was competent to prove the destination of the vessel, so far as that was material on this trial, by parol evidence, notwithstanding there was written evidence on the subject in the custom house. (Robertson v. French, 4 East., 130; Thomas v. Foyle, 5 Esp., 88.) I am inclined to the opinion that the testimony of the witness, that he had cleared the vessel at the custom house, for Liverpool for the owners, was competent, without producing the' documents from the office showing the clearance. It is only with reference to the intention of Had-den that this testimony is material. The actual destination of the ship was not the point in dispute, but only what Hadden believed, or had reason to believe, on the subject. If he caused Wallace to be put on board of her with the intention that he should be compelled to serve as a sailor there, against his will, the offence charged in the second count of the indictment was made out, though it was not expected that the ship would ever leave New York harbor; and if his intent and expectation were, that Wallace would be carried in the ship against his will, to Liverpool, or elsewhere out of the State of Néw York, the offence was complete under the first count, although the ship was not in fact destined for Liverpool or elsewhere out of the State. But whether the parol testimony in regard to the clearance was admissible or not, the objection was properly overruled, as it embraced not only the clearance, but also the statement of the witness that the vessel was -a regular Liverpool packet, which the witness appears to have given of his own knowledge, and which was clearly admissible. As the objection could not wholly be sustained, it was proper to overrule it altogether.

The judgment of the Supreme Court should be affirmed.

DENIO, Ch. J., also delivered an opinion for affirmance.

All the judges concurring,

Judgment affirmed.  