
    State of Iowa, v. Joe Dewey and Fred Slaughter, Appellants.
    Criminal law: kidnapping: rights of parents. Where a father 1 is entitled to the possession of a minor child as against all the world, except the mother, who is his wife, and has an equal right thereto with her, he is not guilty of the crime of kidnapping by taking possession, of the child pending a suit by the the wife for divorce, and before any order is made affecting its custody. And one assisting the parent in procuring the custody of the child under such circumstances is not guilty of kidnapping, although he may have impersonated an officer and represented that he had an order of court for delivery of the child to him.
    Same: appeal: free transcript. Where one criminal defendant had 2 considerable property in another state, and his codefendant stated that he did not intend to press his appeal, a transcript of the record at public expense was properly refused.
    
      Appeal from Calhoun District Court. — Hon. M. E. Hutchinson, Judge.
    Wednesday, June 5, 1912.
    The defendants were convicted 'of the crime of conspiracy to commit a felony, to wit, to kidnap the two minor children of the defendant Joe Dewey. The defendants .appeal.
    
    Reversed in pant and affirmed in part.
    
      W. F. Gray for 'appellants.
    
      George Cosson, Attorney General, and John Fletcher, Assistant Attorney Genteral, for the State.
   Sherwin, J.

The defendant Joe Dewey and Orabel Dewey -are husband and wife. They have two little girls under five years of -age, and prior to September, 1911, Mrs. Dewey lived with 'hen husband in New Mexico, which place is still his home. In September, 1911, a brother of Mrs. Dewey visiting the Dewey’s in New Mexico, and whilé there he caused the arrest 'of the husband, Joe Dewey, and his incarceration in jail, and while Dewey was in jail Mrs. Dewey left New Mexico with her children and her brother iand oaime to Calhoun county, Iowa. She did not tell Dewey that she was going to leave New Mexico, and, so far as the record discloses, he did not know of her action until she had left. While she had before this time commenced an action for a divorce which was then pending, mo order had been made in the case that would in any way affect the right of either to 'the custody -of the children. On 'the 19'bh day of December, 1911, Mrs. Dewey and the twio children were at the home of her uncle, Mr. A. N. Sumner, who was a farmer in Calhoun county. About 9 o’clock that night -these two defendants, Joe Dewey and Fred Slaughter, went to the home of Mr. Sumner and obtained peaceable possession -of the two children hy representing that Slaughter wais an officer from New Mexico and 'that ‘he had an order of count for the delivery of the children to him. This claim was false and, before the children were taken from the 'state, or in fact far from Mr. Sumner’s home, the defendants were arrested and the children were returned to Mrs. Dewey. The appellants insist .that many errors were committed hy the court, in its rulings during the trial, hut most of the complaints are wholly without merit, and, in * view of our conclusion on the main question whether the -evidence is sufficient to sustain the conviction, we need mot -more specifically notice these alleged -errors.

It is conceded hy 'the state that, had Dewey in his own right as the parent of the children gone to the Sumner home and peaceably obtained possession of 'the children for the purpose of taking them to New Mexico, he would not be guilty of any offen'se. And it must follow, of course, that under such circumstances Slaughter could not be any more guilty than Dewey because, if he was simply aiding Dewey to do a lawful act in a lawful way he could not be more guilty than his principal.

Where a father is entitled to the possession of his minor child as against all of the world except its mother, and where the father and mother are equally entitled to possession, he does not commit the crime of kidnapping by taking possession 0£ Commonwealth v. Meyers, 146 Pa. 24 (23 Atl. 164); Hunt v. Hunt, 94 Ga. 257 (21 S. E. 515); People v. Congdon, 77 Mich. 351 (43 N. W. 986; 24 Cyc. 797).

And a person who assists tlhe father under such circumstances is not guilty of the crime. Commonwealth v. Meyers, supra; State v. Beslin, 19 Idaho, 185 (112 Pac. 1055); John v. State, 6 Wyo. 203 (44 Pac. 51); State v. Angel, 42 Kan. 216, (21 Pac. 1075).

The case is then really brought down to the narrow question whether these defendants took possession of tho children for Dewey or for Slaughter; the state insisting that the latter was the case. We can not agree with the contention. Every line of the record points in the one direction that Dewey was after his children and that Slaughter was merely assisting him by personating an officer. For some unaccountable reason, the exact way in ■which Slaughter came to be connected with the affair docs not appear, but enough is shown to convince us that he was only assisting Dewey and that he should not be punished therefore on the evidence before us. On the main case, therefore, 'the judgment will be reversed as to both defendants.

Both defendants asked for transcripts of the shorthand notes of the evidence at the expense of the county, and botih requests were refused, and we think rightly so. Dewey was shown to have considerable property in New Mexico, and he was clearly . 7 d not entitled to a free transcript, and, when the court ruled on Slaughter’s application, the court had before it Slaughter’s own statement that he did- not intend to press his appeal to this count.

Th’e judgment convicting the defendants is reversed, and the order refusing them free tnanscript is affirmed.

Reversed in part and affirmed in part.  