
    Richard Gould v. State of Nebraska.
    Filed April 21, 1904.
    No. 13,642.
    1. Trial: Eebob. In order to predicate error on the fact that the father of a state’s witness was permitted, while she was testifying, to sit near her in the court room, it must affirmatively appear that his presence caused her, in giving her evidence, to deviate from the truth, or color her statements to the prejudice of the accused.
    2. Secondary Evidence. Where it is shown that a note and certain letters written by the accused to, and received by, a child alleged to have been enticed away from her parents by him, have been totally destroyed by her, at his request, and can not be restored or produced, and that she remembers their contents, she may be permitted to give oral evidence of what they contained.
    3. Instructions. Instructions examined, and held to have been properly given.
    4. Evidence. Record examined, and the evidence held sufficient to sustain the verdict.
    5. Sentence. Where a man of mature years, who is married and has a family of 7 children, is guilty of enticing a girl of 15 years of age away from her parents for an unlawful purpose and in vio- ■ lation of the provisions of section 20 of the criminal code, he being a minister of the gospel and she a member of his church, a sentence of 6 years in the penitentiary is not an excessive punishment for his crime.
    
      Error to tbe district court for Merrick county: Conrad Hollenbeck, Judge.
    
      Affirmed.
    
    
      Patterson é Patterson, for plaintiff in error.
    
      F. N. Prout, Attorney General, and Norris Brown, contra.
    
   Barnes, J.

At tbe September, 1903, term of the district court for Merrick county, one Richard Gould was tried and convicted of the crime of child stealing. After his motion for a new trial was overruled, the court sentenced him to imprisonment in the penitentiary of this state for the period of 6 years. To reverse that sentence he prosecuted error to this court, and will hereafter be called the plaintiff.

In the first assignment of error the plaintiff complains because the father of Eva Flint, the child charged in the information to have been stolen or enticed away, was allowed to remain seated near her while she testified on the trial of the case. The plaintiff states no reasons in support of this assignment which in any way appeal to our consideration. The substance of all that is said by him is, that he thinks the father had manufactured testimony in the nature of a family record, which was introduced in evidence as exhibit “A”; and for that reason his being allowed to sit facing his daughter while she was testifying was prejudicial to the plaintiff’s rights. A careful examination of the record fails to disclose any improper conduct on the part of the father, and it nowhere appears that the testimony of the daughter was in any way affected by the father’s presence.

The plaintiff, by his second assignment, contends that the court erred in allowing the witness, Eva Flint, to give oral evidence of the contents of a note she had received from him the day before they left the state, and certain letters theretofore written by him and received by her. The only argument made by counsel in support of tills contention is, that no sufficient foundation was laid for the introduction of this class of testimony. It appears from the record that the note and the letters in question Avere Avritten by the plaintiff, and received by the witness; that after she had read them, at his special request, they Avere totally destroyed by her; so that, as she testified, it was impossible to find or restore them. In addition to these facts, the Avitness stated that she could remember certain portions of Avhat the note and letters contained. Thereuimn she Avas permitted to state, in detail, such parts of them to the jury as she could remember. It thus appears that a sufficient foundation Avas laid for the introduction of this evidence, and plaintiff’s contention is Avith-out merit.

The next assignment of error argued, in substance, is, that the court erred in permitting the Avitness, Eva Flint, to state that she would not have gone away but for the inducements of plaintiff. The facts constituting these matters of inducement had been properly put in evidence, and after the Avitness had testified to them in detail, she then stated that, but for them, she would not have left her home Avitli the accused. It Avas proper for her to state» these matters, to give the actions and statements of the accused, and state Avhat effect they had on her. Therefore; the court did not err in receiving this evidence.

It is further contended that the; court erred in giving the; jury his instruction numbered 1, on his own motion. We have examined this instruction, and find that it contains a fair and impartial statement of the charges container! in the several counts of the amended information on Avliich the accused Avas tried, and informed the jury of the issues presented for their consideration. It is insisted, hoAvewer, that, because the state; ederted to'rely for a conviction on the third count of the information, it was error for the» court to mention the other two counts. We are unable» 1o agree Avitli this contention. Tt was the duty of the court to advise» the jury of the» facts eliargenl in the information, which Avas fairly and impartially done. This was immediately folloAved by a direction to them, as follows: “The state having elected to rely upon the third count of the information, the ñrst and second counts are therefore withdrawn from your- consideration. Therefore-the only questions for your consideration in this case are the allegations contained in the third count of the information.”

It thus appears that the statements contained in the first and second counts of the information Avere entirely withdraAvn from the consideration of the jury, and in such a manner that they could not have been-misled to the. prejudice of the plaintiff by this instruction.

Complaint is also made of the giving of instructions numbered one, two, three and four, asked for by the state. The best way to dispose of these assignments is to consider them separately and in connection with section 20 of the criminal code under Avhich the prosecution took place, Avliich provides as follows: “Any person avIio shall maliciously or forcibly or fraudulently lead, take, or carry aAvay, or decoy, or entice aAvay, any child under the age of eighteen years, Avith intent unlawfully to detain or conceal such child from its parent or parents, or guardian, or other person having the laAvful charge of such child, shall be imprisoned in the penitentiary not more than tAventy years nor less than one year.”

By the first of these instructions complained of the jury Avere told,- in substance, that any solicitation, representation or suggestion made to Eva Flint by the accused for the purpose of influencing her to leave her father Avould, if it actually induced her to go aAvay, be sufficient io make out a case of enticing.

By the. second instruction the. jury were informed that it was unnecessary for the state to establish beyond a reasonable doubt that it was the intention of the defendant in enticing Eva Flint away, if he did'entice her away, to both detain and conceal her from her father; that it was sufficient for them to find from the evidence beyond a reasonable doubt that it was his intention to do either, And, if they so found, it would be sufficient to make out a case of enticement, Avith intent, as charged in the information.

By the third instruction the jury were told that, Avhile it was necessary for them to find and determine the intent of the accused, beyond a reasonable doubt, yet in so doing it would he immaterial for them to determine whether Eva Flint joined in said intent or not. In short, the substance of this instruction was, that the intent with which the accused performed the acts complained of, Avas Avhat should be considered by them, and that the intent of Eva Flint in leaving her home Avith him Avas immaterial.

By the fourth paragraph of the instructions the jury were told, in substance, that in order to establish the intent of the accused it was not necessary for the state to show that it was his intent to detain or conceal Eva Flint from her father, against her will. No authorities are cited to prove that these instructions, or any of them, were erroneous. And Ave are satisfied that there is nothing contained in them which could in any manner prejudice plaintiff’s legal rights. They seem to cover the propositions of laAV involved in the case, and to state fairly to the jury Avhat it Avas necessary for the state to prove beyond a reasonable doAibt, in order to warrant a conviction, under the section of the statutes above quoted.

The next assignment of error is, that the evidence is not sufficient to sustain the Arerdict. This question seems to be relied on to a greater extent than any of the others, and is argued at considerable length by counsel for the plaintiff in error. The gist of the argument seems to be that the plaintiff and his counsel appear to labor under the impression that because Eva Flint consented to go aAvay Avith the plaintiff, that he is innocent of the charge of child stealing. To sustain this contention Avould practically set aside, and hold for naught, the statute under which this prosecution Avas conducted. It must be borne in mind that the offense of enticing a. child away for unlawful purposes, Avithout the use of violence, is entirely separate and distinct from tbe one of forcible abdnction. Tbe fact that Eva Flint consented to leave ber parents, with tbe accused, is immaterial. Tbe offense is complete if tbe accused enticed ber away with tbe unlawful intent, and by bolding out hopes of some advantage to ber, or by allurements persuaded ber to .go with bim. Tbe word “entice,” as used in this statute, must be given its ordinary and usual meaning, which is: To draw on; to instigate by inciting hope or desire; to allure, especially in a bad sense; to lead astray, to tempt, to incite. Its synonyms are: To allure; to coax; to destroy; to seduce; to tempt; to inveigh; to persuade, and prevail on. That tbe accused, by bis statements to Eva Flint, persuaded and induced ber to leave ber home and go with bim for bis unlawful purposes, is fully and completely established by tbe evidence contained in this record.

Lastly, tbe plaintiff contends that tbe court should-reduce bis sentence; that 6 years in tbe penitentiary is too long a term, and too severe a punishment for tbe offense committed by bim. It appears from tbe record that tbe 'plaintiff is a man of mature years, having a wife and 7 children; that be was pastor of tbe church of which Eva Flint and ber mother were members; that taking advantage of bis confidential relations with them as their spiritual adviser, be frequented their home; that Eva Flint was a girl about 15 years old, perhaps a year older, but not exceeding that age; that shortly after tbe accused commenced his visits to her home be began bis attempts to induce ber to accompany bim to some distant state, and participate with bim in bis unlawful purposes. It appears that she hesitated to leave ber parents, but ber hesitations were overcome by his blandishments and promises, together with bis pretended solicitude for and care of ber; that finally persuaded by bis promises she yielded to bim, and acompanied bim from ber home to Aurora in Hamilton county, from thence to Lincoln, from there to Omaha, to St. Paul, Minnesota,.to Minot and finally to Williston, North Dakota, where she entered upon a course of illicit relations with him, and wlieie they were found living together as man and wife at the time of his arrest. On the trial he offered no explanation of his conduct, and there appears a letter in the record from him to the father of this child in Avhieh he acknowledges his guilt. The follow-;ng is a part of the letter: “My plans were well laid, and I worked while others slept. Some day you will hear from us again. When you get this we will be hundreds of miles from here.”

A careful examination of the record in this case .satisfies us of the guilt of the accused. With this view of the case we are unable to say that his sentence is too severe. His conduct was so reprehensible that it would, shock the sensibilities of the irreligious, even those who are “dead in trespasses and in sin.” Such conduct on the part of a minister of the gospel can not be too severely censured. The accused made use of his confidential relation as spiritual adviser of the mother and daughter to frequently visit this family Avhieh he has disgraced, and entice from her home this child AA’hose ruin he has accomplished; and in our judgment “the punishment fits the cióme,” and the judgment of the district court is

Affirmed.  