
    
      In re James E. Peck and Emma Peck, Petitioners.
    
    No. 13,271.
    (72 Pac. 265.)
    SYLLABUS BY THE COURT.
    
      Kidnapping — Parentage Not an Absolute Defense. In a prosecution for kidnapping children alleged to have been taken unlawfully from a person to whom their custody had been awarded by a probate court in a habeas corpus proceeding to which the defendant was a party,' the fact that the defendant is the parent of the children in question is not an absolute defense.
    Original proceeding in habeas corpus.
    
    Opinion filed April 11, 1903.
    Petitioners remanded.
    
      Z. G. Millihin, and J. A. Smith, for petitioners.
    
      G. W. Burch, for respondent.
   The opinion of the court was delivered by

Mason, J. :

This is a proceeding to review by habeas corpus the action of an examining magistrate in holding James E. Peck and Emma Peck for trial upon a charge of kidnapping. It grows out of the same state of facts'as the case of In re King, immediately following. The petitioners are prosecuted under'section 47 of the crimes act (Gen. Stat. 1901, § 2032). The defense is that Emma Peck is the mother of the children taken and that James E. Peck is her husband. The case of The State v. Angel, 42 Kan. 216, 21 Pac. 1075, is relied on as justifying this defense, and it is argued that, a parent cannot be found guilty under this statute of kidnapping her own child. The statute reads :

"Every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian or other person having the lawful charge of such child, shall upon conviction be punished by confinement and hard labor not exceeding five years, or imprisonment in the county jail not less than six months.”

In the present case the children are alleged to have been taken from their grandmother, to whom the custody of the children had been awarded by the probate court of Saline county in a habeas corpus proceeding brought by the mother. Under such circumstances the grandmother was a “person having the lawful chax’ge” of the children, even against the mother, whose legal right to take the children was cut off by the order of the court. Even a parent, or one acting by authority of a parent, in such a case may be prosecuted under such a statute. (State v. Farrar, 41 N. H. 53; Commonwealth v. Nickerson and others, 5 Allen, 518 ; 2 Bish. Crim. L. § 754.)

We decide this question because it necessarily arises in the case. Under the rule stated in In re Chamberlain, 61 Pac. 805, the court will not undertake to go further and weigh the' evidence for and against the defendants upon the general qxxestion of their guilt or innocence. But the fact that in the case of In re King this court has awax’ded to the mother the custody of the children will naturally be considered by the prosecuting officer in determining the advisability of a further prosecxxtion.

The petitioners are remanded to the charge of the sheriff of Saline county.

All the Justices concurring. Burch, J., not sitting-  