
    The People of the State of New York, Resp’ts, v. John De Leon, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 23, 1888.)
    
    Criminal law—Kidnapping—Penal Code, § 211—Meaning oe term “to inveigle”—Penal Code, § 213—Construction oe.
    The defendant, with the intent to induce the complainant to leave the state for a wicked purpose, made false representations which were believed to be true and relied upon, and being relied upon resulted in the departure of the complainant. JMd, the complainant was thus enticed and inveigled. Whatever one does by means of falsehood, deceit, misrepresentation or fraudulent device is involuntary and in opposition to and against, one’s will. Under section 213, Penal Code, the consent to be a defense, must be intelligent with full knowledge of the thing consented to. The-word “inveigle” involves consent, and section 213 cannot apply to such a case. The legislative intent was to apply it to such cases which do not necessarily involve the consent of the person entrapped.
    
      Appeal from judgment of the court of general sessions.
    • John D. Townsend, for app’lt; B. B. Marline and McKenzie Semple, for resp’ts.
   Per Curiam.

The defendant was indicted for willfully and feloniously inveigling and kidnapping one Sarah Bowers with intent to cause her to be sent without authority of law to the city of Aspinwall, in the state of Panama, in the United States of Columbia, and to be there kept against her will.

On the trial it abundantly appearea that sue was induced by the appellant, aided and abetted by a woman whom she met at his office, and who seems to have been acting in concert with him, to go on board a steamer bound to Aspinwall, Panama, induced, enticed and wheedled thereto by him in the manner stated. He suggested the passage, procured and paid for the tickets, and gave Mrs. Bowers a letter addressed to Mrs. De Blem, who appears to have been his ally in the business in Panama, and who received and disposed of the women he sent to Aspinwall, in which letter his business was revealed sufficiently to make it duly understood, particularly in connection with the evidence of Bonsall, .and it was the transportation of women to Panama for the purpose of prostitution. His inducement, by which Mrs. Bowers was enticed; was the offer of a situation for her as nurse or lady’s companion in Panama, and upon which she testified she relied, and by which she was induced to go; and, further, that if it were' not for such reliance she would not have gone.

The statute under which the appellant was convicted provides that a person who wilfully inveigles or kidnaps another with intent to force him without authority of law to be secretly confined or imprisoned within the state, or to . be sent out of the state to be sold as a slave or detained against his will, is guilty of kidnapping. The word “inveigle” is defined to be to persuade to something bad, to wheedle, to entice, to seduce, to beguile, and to inveigle involves no physical force, but such mental control over the person inveigled as to entice him to do what was designed or intended, to beguile him to do it, and if this be accomplished by falsehood, by deceit, misrepresentation or device, whatever it may be, which captivates the mind, the crime is committed. The departure is then, against the will, because of the fraud perpetrated upon its possessor, which acts on a belief induced by falsehood and for a wicked purpose, and without which falsehood the departure would not have taken place. The act of the appellant may be- briefly stated as follows: with an intent to induce the complainant to leave this state for a wicked purpose, he made false misrepresentations which were believed to be true and "relied upon, and being relied upon, resulted in her departure. She Was thus enticed, thus inveigled.

Under the Revised Statutes (3 R. S. [7th ed.], 2476, § 28), which was similar to section 211 of the Penal Code, the court of appeals, in Hadden v. The People (25 N. Y., 373), held that 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 was kidnapping under section 28 (supra), and that it was immaterial whether the offender did the acts in person or caused them to be done. And the court also held that where the intent and expectation is that the seaman will be carried out of the state, the offense is complete although the ship be not in fact destined to leave the state.

On the trial there discussed, the defendant’s counsel asked the instruction that the business of providing ships with sailors was lawful, and it was assumed that such was the intention, but that if the person kidnapped was to be sent to become a sailor, he was to be made such against his will. So here, if Mrs. Bowers was to be sent to Panama .for improper purposes it was against her will, and this was proved in fact by her return, and it is sufficiently shown, for the reason that her ultimate destination through the macninations of the appellant was discovered on the voyage. It is true that in the case cited the intoxication deprived the complainant of the power of exercising his will, but here the will was led captive by the appellant’s fraudulent device and made subservient to his wishes.

This adjudication is quite sufficient in principle to sustain the conviction. The cases are analogous. While it must be said that Mrs. Bowers went on the journey tor a purpose not truthfully set out by the appellant, she involuntarily went for the object intended by the appellant and thus so far as his intent, enticement, inducement or beguilement is concerned, against her will. We are now dealing with his acts, designs, intent and whatever may be legitimately said to result from them, fairly tested by the incidents and emotions of life must be his burden. What was his intent —what he did in furtherance of it—what was done by his victim willingly and what against her will, are all proper subjects of inquiry, and it is a universal problem, and if it were not it ought to be that whatever one does by means erf falsehood, deceit, misrepresentation or fraudulent device, is involuntary as in opposition to and therefore against her will. Covin doth destroy all things.”

Indeed, it must be further said that the statute was designed as evidenced by the word, inveigle ” to provide for cases kindred to this, where a person by improper device might be induced or enticed by another to leave the state to promote some unlawful scheme of the other.

If such cases are not within the letter they are assumedly within the spirit of the statute, otherwise monstrous wrong might be accomplished, as in this case, with impunity. The infamous traffic of the appellant based upon the moral death of innocent virtuous women in pursuit of honest em-ployment can be carried on in defiance of law. Mrs. Bowers for example, started away with a mind absolutely blank as to the object the appellant had in view in her departure, and under impressions that she was about to secure by honest labor, her own support and that of her children with no surmise, no conjecture that she was to be led hopelessly into the realm of vice, far from friends, in an unhealthy climate, without means to pay the expenses of an immediate return, and therefore in a pitiful plight. It was this very condition upon which he relied for success in detaining his victim at the designated place, there either to yield from necessity or die. Indeed, he boasted of the safety of the business, for he said “dead women like dead-men tell no tales.”

The only possible answer to these views springs from the provisions of section 213 of the Penal Code, which declares' that upon a trial for a violation of this chapter, the consent thereto of the person kidnapped or confined shall not be a defense unless it appears satisfactorily to the jury that such person was above the age of twelve years, and that the consent was not extorted by threats or duress.

But here there was no consent to do what the appellant attempted to accomplish. Mrs. Bowers consented to go to Panama on the promise of honest employment by respectable employers and not for any other purpose. She- did not consent to go for the object in view by the appellant. She did not know it. The consent must be intelligent, with full knolwedge of the thing consented to The word “inveigle,” it must, also, be borne in mind involves consent and the section mentioned, cannot, therefore, apply to such a case. If there be an alleged seizure or any force, the consent would be an answer unless obtained by threat or duress. If it were alleged or proven that a person was approached and asked to leave tfie state and refused, and then put in jeopardy, and to avert it consented, the person charged with offense might take issue upon the alleged jeopardy, and in addition prove the consent. This would present the vital question to be determined. If the section is to be applied to cases of inveiglement and the consent involved as suggested, is an answer then that element is of no force whatever. No conviction can be had under a charge resting upon ff. The legislative intent was to apply it to cases, which do not necessarily involve the consent of the person entrapped.

But such a consent, if to be regarded at all, can be of no avail to the appellant, for it is a doctrine extending through all the departments of the law, that whatever is produced by fraud, is to be deemed as though it did not exist. Bishop On Criminal Law, vol. 1, § 261.

In Reg v. Hopkins (Carrington & Marshman’s Rep., 254), in which the charge was abduction, the father of a female child parted from her on the representation, which he believed to be true, that she was to go to live with a lady. It was contended that, consent having been given, no offense had been committed, but Gurnet, B., said the consent of the father, having been obtained by the fraudulent representations of the prisoner, was in truth no consent at all, and proceeded to illustrate the proposition by several instances. He then said: “I mention these cases to show that the law has long considered fraud and violence the same. This case is cited with approbation in Bishop on Statutory Crimes, § 635.

It only remains to say that the exceptions effecting the evidence have been examined and none of them are vital. Those taken during the examination of Mr. Bonsall are, perhaps, the more formidable, but his testimony, which was chiefly of interviews with the appellant, was important on the question of intent, developing as it did the method employed by the latter in conducting his business.

It was a part, and properly so, of the res gestae.

The exceptions to the charge and refusals to charge are equally valueless. The theory upon which the accusation against the appellant was tried and presented to the jury was within the principles laid down herein, and the appellant has no legal cause of complaint.

■The judgment should, for these reasons be affirmed  