
    Mayo v. The State.
    
      Child stealing — Revised Statutes, section 6825 — Construction.
    It is an essential element of the crime of child stealing, under section 6825, of the Revised Statutes, that the intent unlawfully to detain or conceal accompany the act of taking the child.
    Error to the Court of Common PleaB of Franklin county.
    
      Mayo was tried, convicted, and. sentenced to the penitentiary, in the court of common pleas of Franklin county, at the April term, 1885, upon an indictment framed under section 6825 of. the Revised States, which defines the crime of and prescribes the punishment for child stealing. This is a petition in error to reverse the judgment.
    On the trial there was testimony tending to show that in December, 1884, Mayo, who lived in Delaware county^ came to the city of Columbus for the purpose of drawing an installment of pension money, payable to him by the federal government on account of disabilities incurred in the war of the rebellion. He spent several days in Columbus, stopping as was usual with him on such occasions, at the house of his sister-in,-law, Fannie Long, the prosecuting witness. It appeared that the latter’s husband had, about a year previously, abandoned her with four small children, leaving them in destitute circumstances and dependent solely upon the labor of Fannie for support. It was Mayo’s custom when stopping with them to expend a portion of his pension money in the purchase of provisions and clothing for the family; and upon the occasion of his visit in. December, 1884, he not only purchased articles of clothing for them and gave them money, but proposed to Fannie that she should move to Delaware, where he could be near and help her. Upon her refusal he asked permission to take some of the children with him to Delaware, and finally one of them to keep through the winter. When he was ready to depart he took the youngest child, eighteen months old, in his arms, and urged for permission to take it, to which he claims the mother acceded, and he thereupon left with the child; but it is claimed, upon the other hand, that he did so under the pretense of taking it out to purchase clothing for it, and that even for that purpose the mother refused to consent to its accompanying him. Upon arriving at the depot, Mayo found that the train for Delaware had gone. He then concluded to visit an uncle living in Greene county, and took another train going in that direction. On his arrival lie found bis uncle sick, and it became necessary that he should remain there, which he did, with the child, where it received proper attention, until the month of March following, writing several times during the winter to Fannie Long as to the whereabouts and welfare of her child, which letters, however, she claims not to have received, and that she had no knowledge of its whereabouts until March 4,1885, when Mayo, coming to Columbus to draw his pension, was arrested. He had walked from Greene county, being out of money, and intended, after receiving his pension, to return and bring the child home.
    The court, among other things, charged the jury: “If the evidence satisfies you beyond a reasonable doubt that defendant took, or led, or carried the said child away from the mother without her consent, and against her will,'it was an unlawful taking. And if you further find from the evidence beyond a reasonable doubt that when the defendant so carried away said child, he intended unlawfully to detain or conceal said Florence Long from her mother, Fannie Long, the defendant is guilty as charged in the indictment, and such should be your verdict.” And further, “ If you find from the evidence beyond a reasonable doubt that defendant unlawfully carried the child way (and I have described to you what an unlawful taking and carrying away is), then and in that case any detention or concealment of said child by defendant (if you find that defendant did conceal or detain said child), was an unlawful detention within the meaning of the statute.”
    
      John J. Chester, for plaintiff in error.
    
      Robert B. Montgomery,, prosecuting attorney, for the state.
   Bx the Court.

The Revised Statutes provides: “ Sec. 6825. Whoever. leads, takes, carries, decoys, or entices away a child under the age of twelve years, with intent unlawfully to detain or conceal such child from its parent, guardian, or other person having the lawful charge or custody thereof, and whoever, with the intent aforesaid, knowingly harbors or conceals any such child so led, taken, carried, decoyed, or enticed away, shall be imprisoned in the penitentiary not more than twenty years nor less than one year.”

The gist of the crime of child-stealing under this section is the “ intent unlawfully to detain or conceal ” the child from its parent or person entitled to its custody. But the court instructed the jury that if the child was taken away from its mother without her consent and against her will, such taking was unlawful, and any detention thereafter completed the crime. This instruction was misleading. Plainly, the intent unlawfully to detain must be present at the time of the taking. A child might be taken from its home without the consent, and even against the will, of its parent, without intending any detention or concealment, such as for the purpose of taking it to a place of amusement, and under the charge, any detention, however brief or accidental, would constitute the offense. The tendency of the charge was to lead the jury to eliminate from their minds all considerations with respect to the motive and intent of the accused at the time of the taking, and to look to the naked faets as to whether the child was taken without the consent and against the will of the mother, and was followed by any detention.

The crime of child-stealing is one of the most cruel and heartless in the calendar. It strikes a blow at the tenderest and most sacred affection of the human breast, and is usually resorted to for purposes of revenge or extortion. It is never the outgrowth of kindly and charitable feelings, such as the evidence tended to show animated Mayo in his effort to help his sister-in-law and her family in their struggle for existence.

By the Jewish and the civil law, kidnaping was punishable with death, and by the common law with fine, imprisonment, and the pillory.

Fortunately, child-stealing is now an offense of rare oceurrenee, the records of the state showing but a single conviction in ten years.

Where the crime is proven in all its elements, punishment should be exemplary, but the intent unlawfully to detain or conceal is an essential element, and must accompany the act of taking.

Judgment reversed.  