
    The People of the State of New York, Appellant, v. Austin J. Camp, Respondent.
    To constitute a crime under the provision of the Penal Code defining the crime of kidnapping ($ 211), where the person seized or inveigled was not removed from the state, the intent must have heen secret confinement in the state.
    Where a person of mature years is seized and removed in daylight over public highways and railroads, in the presence and view of many people, and taken to a public insane asylum, this does not constitute the crime of kidnapping, and it seems this is so, although the person committing the wrongful act knew that the person was not insane and used the forms of law from improper and malicious purposes.
    Reported below, 66 Hun, 531.
    (Argued June 27, 1893 ;
    decided October 3, 1893.)
    
      Appeal from judgment of the General Term of the Supreme Court in the fifth judicial department, entered upon an order made at the October Term, 1892, which reversed a judgment of the Court of Oyer and Terminer of Cayuga county, entered upon a verdict convicting defendant of the crime of kidnapping, directed his discharge and reversed an order denying a motion for a new trial.
    The facts, so far as material, are stated in the opinion.
    
      Louis Marshall and A. P. Rich for appellant.
    The defendant having willfully and with intent to cause his daughter to be secretly imprisoned and detained against her will, confined her in a lunatic asylum, when he knew her to be sane, without the sanction of an adjudication by due process of law, by a competent tribunal, declaring her to be insane, such imprisonment was “ without authority of law,” and constitutes the crime of kidnapping. (Stuart v. Palmer, 74 N. Y. 190; Taylor v. Porter, 4 Hill, 147; Westervelt v. Gregg, 12 N. Y. 209 ; Code Civ. Pro. §§ 2320-2344; Ayers v. Russell, 50 Hun, 290; Fletcher v. Fletcher, 1 El. & El. 420 ; Anderson v. Burrow, 4 C. & P. 210; Coghlan v. Woods, L. R. [10 I. & E.] 29 ; Scott v. Wahan, 3 F. & F. 328; Bell v. Allen, 2 Jones Ir. Exch. 448 ; Cooley on Const. Lim. [5th ed.] 706 ; Cooley on Torts, 178 ; Colby v. Jackson, 12 N. H. 526; Look v. Dean, 108 Mass. 116 ; Williams v. Williams, 4 T. & C. 251; Com. ex rel. Nice v. Kirkbride, 2 Brewst. 400; Com. ex rel. Steward v. Kirkbride, Id. 419 ; Com. ex rel. Haskell v. Kirkbride, 3 id. 586; Hurlehy v. Martine, 10 N. Y. Supp. 92.; Click v. State, 3 Tex. 282 ; Moody v. People, 20 Ill. 315 ; Smith v. State, 65 Wis. 453; People v. De Leon, 109 N. Y. 226; Ward v. Town of Southfield, 102 id. 287; State of Michigan v. P. Bank, 33 id. 9 ; Hunt v. Hunt, 72 id. 227.) The objections taken to the questions propounded to lay witnesses as to whether Mrs. Baird appeared at the time of the conversations or transactions had with her by the respective witnesses to be rational and as to whether her speech was coherent, are untenable. (Clapp v. Fullerton, 34 N. Y. 190; 
      Holcomb v. Holcomb, 95 id. 316; People v. Conroy, 97 id. 62; Paine v. Aldrich, 133 id. 154; People v. Packenham, 115 id. 202; Painton v. N. C. R. R. Co, 83 id. 14; Machín v. L. F. Ins. Co., 90 id. 690 ; People v. Brooks, 131 id. 324.) There was no error committed in allowing Mr. Meads, the deputy sheriff, to testify that the defendant was engaged in an attempt to suppress the prosecution of this case before the grand jury. It tended to show the existence of a guilty mind. (Gulerette v. McKinley, 27 Hun, 320.) The appeal of the defendant to the General Term brought up for review the judgment only, and not the order denying the motion for a new trial, and no jurisdiction was conferred upon the General Term to review that order, hence this court has jurisdiction to review not only the determination of the General Term discharging the defendant, but to sustain the conviction in case no material errors of law are discovered in the record. (Selden v. D. & II C. Co., 29 N. Y. 631; Thurber v. H. R., etc., R. Co., 60 id. 326 ; Mathews v. Mayberg, 63 id. 656 ; Boos v. W. M. L. Ins. Co., 64 id. 242; Wagner v. Jones, 7 Daly, 375 ; Eberman v. Rothchild, 11 Wkly. Dig. 273; Robertson v. Brink, 13 id. 109; Olmstead v. Read, 30 id. 503; Bates v. Riordan, 21 id. 134; Morange v. Morris, 13 Abb. Pr. 166; Gregg v. Howe, 5 J. & S. 120 ; Alfero v. Davidson, 8 id. 86.)
    
      Frank D. Wright for respondent.
    Defendant is not guilty of the crime of kidnapping, and the judgment of conviction should be reversed. (Penal Code, § 211; Clark v. Texas, 1 Tex. 255 ; Marks v. Townshend, 97 N. Y. 590; Daly v. Back, 87 id. 62; Chitty on Pleading, 187; Watson v. Watson, 9 Cow. 140; Coupal v. Ward, 106 Mass. 289; Mullen v. Brown, 138 id. 114; Andrews v. U. S., 2 Story, 203 ; Chase v. N. Y. C. R. R. Co., 26 N. Y. 525.) Even upon the incorrect theory adopted by the trial court, the verdict and judgment were unsupported by any legal evidence. A new trial should be granted if, in any aspect of the case, error was committed in the progress of the trial — the narrow and technical rules are abrogated. (Code Crim. Pro. § 527; People v. Williams, 1 N. Y. C. R. 336 ; People v. Sweeney, 4 id. 276; People v. Sullivan, Id. 198.) The rulings of the trial judge in regard to the evidence were clearly erroneous. (Clapp v. Fullerton, 34 N. Y. 190; O’Brien v. People, 36 id. 276; Real v. People, 42 id. 270; Howlett v. Wood, 55 id. 634 Holcomb v. Holcomb, 95 id. 316 ; 2 Phillips on Ev. [5th ed. ] 960 ; Hart v. H. R. B. Co., 84 N. Y. 60; Kimball x. Daris, 19 Wend. 437; Palmer x. Haight, 2 Barb. 210; Spragne v. Cadwell, 12id. 516 ; 1 Greenl. on Ev. § 462 ; People v. Whiting, 1 N. Y. C. R. 336 ; People v. Sweeney, 4 id. 276.)
   Earl, J.

We think the court below could, under section 527 of the Code of Criminal Procedure, properly have reversed this conviction on the ground that the verdict was against the weight of evidence, or that justice required a new trial. But if it had reversed the conviction upon either of these grounds or for any other errors which could be obviated or corrected upon a new trial, instead of discharging the defendant, it should have ordered a new trial. (Code of Criminal Procedure, § 534; People v. Phillips, 42 N. Y. 200.) Therefore, to uphold the decision of the General Term discharging the defendant, we must be able to see in this record some fundamental obstacle to his conviction for the crime charged in the indictment.

Kidnapping was an offense at common law, and consisted in the unlawful removal of a person from his own country or state against his will. (4 Black. Com. 219; 1 Russell on Crimes [9th ed.], 962; 1 Wliart. C. L. [8th ed.] § 590 ; 2 Bish. C. L. [7th ed.] § 750.) In the case of adult persons it is believed that at common law the crime of kidnapping was not complete until the person alleged to have been kidnapped was removed from his own country to another, and thus deprived of the benefit and assistance of the laws under whose protection he lived. But at a very early day in England statutes were passed extending the crime to other cases, and it is now defined by statutes, it is believed, in all the states of this conntry, and nowhere, so far as we can discover, would the acts of the defendant, as disclosed by the evidence in this case, constitute the common-law or statutory offense of kidnapping.

Now what are the material facts of this case! Mrs. Baird, aged 29 years, was a married daughter of the defendant, living with him separate from her husband. In August, 1890, the defendant., alleging .that she was insane, went to the county judge and stated the case to him. He designated two competent and qualified physicians to examine her, and they went to the house of the defendant and examined her, and investigated her condition, and certified under oath that she was insane, and subsequently their certificate was approved by the judge. She knew' of these proceedings, and knew that the physicians had adjudged her to be a lunatic, and that she was to be taken to the asylum. The defendant, having the certificate, took her in the daytime to the lunatic asylum at Utica, and for that purpose he used no force or violence whatever. He believed that he had the right to take her, and she, believing that she was obliged to go, voluntarily went with him, without making any resistance or any effort to escape. She was delivered at the asylum and there remained for about three weeks, when she was discharged on the ground that she Avas not insane. The asylum physicians and attendants believed that she Avas not insane at any time while she was in the asylum. Upon the trial there was a controversy as to her insanity when the certificate of the physicians Avas made, and as to the motive of the defendant in taking her to the asylum, and as to his belief that she Avas really insane at the time. We" will, for the purposes now in hand, although far from believing it, assume that she Avas not insane, and that the defendant kneAv it, and that he used the forms of laAV from improper and malicious motives, and yet avo are of the opinion that he did not commit the crime of kidnapping.

As Ave have stated, under the common law these acts Avould not "have constituted the crime of kidnapping, because Mrs. Baird was not removed from the state. The Revised Statutes defined the crime of kidnapping as follows: “Every person ■who shall without lawful authority forcibly seize and confine any other, or who 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 other person'to be sent out of this state against his will.” (2R. S. § 28, p. 664.) And this section of the Revised 'Statutes, consisting of these subdivisions, was carried into the Penal Code, and is there subdivision one of section 211, as follows: “A person who willfully 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. The Code provision was a mere revision of the provisions contained in the Revised Statutes, and we have no reason to suppose that it was intended to embrace within the definition of the crime •acts before innocent. When the person seized or inveigled is not removed from the state, the intent must be secret confinement within the state. When the person is seized and removed in broad daylight over public highways and railroads in the presence and view of many people, and taken to a public asylum, where there are public officials, numerous physicians and other people, there certainly is no secrecy about the transaction, and it bears no resemblance to what has always been understood to be kidnapping.

In such a case there may be an assault and false imprisonment, but not the crime here charged. Such a person has the protection of our laws and ample remedies against the wrongdoer, and the writ of habeas corpus is always available for his release. Suppose a public officer without authority of law publicly seizes a person in the street and takes him to the police station or jail, is he guilty of kidnapping ? Suppose the defendant, inflamed by undue religious zeal, had taken his daughter by force and carried her to some church and compelled her to sit in a pew by his side during religious services, would he have been guilty of this crime? These questions must obviously be answered in the negative, and unless they can be answered in the affirmative the defendant’s conviction upon the facts of this ease cannot be maintained.

The first part of section 211 provides for all cases of kidnapping by seizure and confinement within the state. The latter part, after the words “within this state,” relates to cases of removal of the person seized or inveigled from the state, and if a broader meaning be given to the latter part, then the fore part is useless and unnecessary. In construing the section, a purpose should be attributed to all the language used..

It is clear, therefore, that anew trial could not result in the conviction of the defendant, and hence he was properly discharged.

Many other questions are discussed in the learned and exhaustive briefs submitted to us, but we do not consider their determination at this time important.

The judgment should be affirmed.

All concur.

Judgment affirmed.  