
    Supreme Court—General Term—Fifth Department.
    
      June, 1885.
    PEOPLE v. SEELEY.
    Abduction under Penal Code, § 282.—Misconduct of Jury.— Verdict of guilty on one of several counts.
    To constitute the crime of abduction under subd. 1 of § 282 of the Penal Code, it is not necessary that the accused should in any case use force or practice fraud or deception.
    
    It is sufficient, under subd. 1, § 283, Penal Code, if a female, being under sixteen years of age, is induced by the request, advice or persuasion of the accused, to go from the place where he approaches her with the solicitation to accompany or meet him at some other place indicated by him, with the intent on his part there to have sexual intercourse with her.
    The word “take,” as used in the statute, does not imply an actual manual capture of the female, nor need she be taken against her will.
    In the case at bar the defendant, being acquainted with the prosecutrix, who was between fourteen and fifteen years of age, approached her while she was in the street in front of her home, with another girl about twelve years of age, and, after some conversation, asked her to go with him into certain grounds near by, which she refused, and defendant walked away. Shortly after, he returned, and renewed his request to prosecutrix, and asked her to go with him into said grounds and there have sexual intercourse with him, and offered to give her a dollar, which he said she could divide with her companion. The prosecutrix then consented, and defendant directed the way by which they should go, and went himself by another way, and they met at the spot designated, when defendant had sexual intercourse with both girls. They then separated, and met soon afterwards on the street, where the accused gave prosecutrix fifty cents, which she shared with her companion.
    Held, in accordance with the above principles, sufficient to constitute the crime of abduction, under subd. 1, § 283, Penal Code.
    Where an indictment contains three counts, and the jury find a verdict of guilty on the first count, and omit to find either way as to the remaining counts, it is equivalent to an acquittal on those counts, and is as to them a bar to further prosecution.
    People ». Draper, 1 H. 7. Orim. Rep, 138, followed, as to misconduct of jury in consulting law-books, etc.
    Appeal from a judgment convicting the defendant, Edward Seeley, of the crime of abduction, also from an order denying a motion for a new trial.
    The indictment was found in the Monroe County Oyer and Terminer, October 6, 1884, and was tried November 14, 1884, in the Court of Sessions of said county, before Hon. John S. Moegah", County Judge, with associates, and a jury, who found the defendant guilty, as hereinafter set forth. On November 24, 1884, a motion for a new trial was made upon the ground, among others, of the alleged misconduct of the jury while engaged in their deliberations, in sending for and consulting certain books of law. This motion was denied, and defendant sentenced to imprisonment in the state prison for the term of five years.
    The defendant was indicted for having abducted Lena Smith, a girl under the age of sixteen years, for the purpose of having sexual intercourse with her. In the first count of the indictment it was charged that the defendant unlawfully and feloniously* did take Lena Smith, a female under sixteen years of age, for the purpose of having sexual intercourse with her. This count was framed under subdivision 1 of section 282 of the Penal Code, as amended in 1884. The second and third counts charged offenses as defined in subdivisions 2 and 3 of the same section. The jury rendered a verdict of guilty as charged in the first count, and did not find either way on the other counts.
    The facts are as follows: Lena Smith, the prosecutrix, lived with her parents in a house near the gi’ounds or yards of the City Hospital in the city of JRochester. The accused had charge of the yards, and was acquainted with and occasionally met Lena on the street in front of her father’s house. She testified, in substance, that on the evening of the day mentioned in the indictment, she was on the street in front of her house, in company with another girl, Jennie Brooks, of the age of twelve years, with whom she was acquainted, when the defendant came to them and commenced a conversation, and proposed to her that she go with him into the hospital grounds, and she refused, and he then walked away. He soon returned to the same place and renewed the request, addressing himself to the prosecutrix, and asked her to go into the hospital yard and there have sexual intercourse with him, and offered to give her a dollar, which he said she could divide with her companion, Jennie Brooks. The prosecutrix then consented, and the defendant directed the way and the gate through which she should pass into the grounds, and the girl, Jennie Brooks, accompanied her, and he went by another way, passing through an alley, and they soon met in the grounds at the place designated by the defendant, a secluded part of the inclosure. While in the grounds the defendant had sexual intercourse with both girls. They then separated, and the girls returned to the sidewalk in front of Lena’s home, where the accused soon joined them, and he gave Lena fifty cents, which she shared with the girl Jennie. The prosecution called the latter as a witness, and she fully corroborated the prosecutrix in her evidence, and the defendant’s confessions were proved, which also tended to establish his guilt, and to confirm the story of the witnesses for the prosecution.
    
      One of the points made by the appellant on the trial was, that the evidence did not constitute an offense within the sense and meaning of the statute.
    
      W. Henry Davis, for the prisoner, appellant.
    I. The testimony of Lena does not show or tend to show that there was any taking of her, as required by the statute, which contemplates some positive act to get the female away from the person having legal charge of her. A person cannot in any sense be taken who goes willingly, and the word take implies in itself the use of some coercion. Proof of an unlawful taking against the will, and involving personal violence or menace, should have been given. Kauffman v. People, 11 Hun, 82; L. 1848, ch. 105, § 1. There was no evidence of fraud and persuasion, or of open violence, and therefore the case should have been taken from the jury.
    II. The facts as developed by the evidence disclose a vol.untary and shameless connection on the part of prosecutrix. The law does not call defendant’s' conduct abduction, or punish it as such. It was simply an offense for the punishment of which all city ordinances amply provide.
    III. The conduct of the jury was irregular, and may have prejudiced defendant. They separated themselves and consulted books of the law while engaged in their deliberations. The question always is, not whether the examination of a book did prejudice the party against whom the verdict was given, but if it may not have worked such prejudice. Vin. Abr. 18, trial p. 1.; Burrows v. Unwin, 3 Carr. & Payne, 310.
    
      Joseph W. Taylor, district attorney ( W. H. Shaffer, assistant), for the people, respondent.
    I. There was abundant and conclusive evidence that a crime had been committed by the defendant, and so proved upon the trial. By an amendment to the first subdivision of section 282, Penal Code, made in 1884, the mere taking of a female under the age of sixteen years, for the purpose of sexual intercourse, became a crime, and under such circumstances the element of the want of consent of the person having legal charge of her person no longer enters into the definition of the crime, when it is committed under such circumstances.
    
      The transitive verb “take” has been defined by Webster to mean, in an active sense, “ to get,” “ to procure,” and hence specifically “ to make selection of,” to choose, to elect, and in a more passive sense “to accept as something offered,” to receive.
    It was shown that when Seeley first approached her and solicited her to. accompany him for the purpose he proposed, that she refused absolutely to do so; that he then walked away, and afterwards returning, renewed his request, and upon his second solicitation offered her money; that she again refused, when the defendant then asked her if she would go if the other girl who was with her would go; that she then went.
    The facts thus shown are quite sufficient to establish such a taking as is contemplated by the statute.
    The English statute of 9 Geo. 4, c. 31, s. 20, of which the existing statute of 24 and 25 Viet., c. 100, s. 54 is a re-enactment, makes it an indictable misdemeanor “ if any person shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father, or any other person having the lawful charge of her.”
    It will be observed that these statutes are silent as to the purpose of. the taking, being unlike our statutes in this respect. But in various reported cases arising under the English statute, the meaning of the verb “ take,” as it there occurs, has been construed. See Regina v. Biswell, 2 Cox Crim. C. 279; Regina v Kipps, 4 Cox Crim. C. 167; Regina v. Timmins, Ct. Crim. App. 8 Cox Cr. C. 401; Regina v. Mankeltow, Ct. Crim. Appeal, 6 Cox Crim. C. 143; Regina v. Frazer, 8 Cox Cr. C. 446 ; Reg. v. Robb, 4 Fost. & F. 59.
    The English cases under the statute against abduction all seem to be ¡perfectly harmonious upon the interpretation to be given to the word “ take,” as used in the statute. All agree that there need be no force, actual or constructive, and that slight enticement and persuasion by which the female either accompanies or meets the abductor is sufficient. See also Carpenter v. People, 8 Barb. 603 ; Bishop on Statutory Crimes, § 634 ; Beyer v. People, 86 N. Y. 369 ; Slocum v. People, 90 Ill. 274.
    II. Where on the trial of an indictment containing different counts, there is a specific verdict of guilty on one count, and the verdict is silent as to the other counts, it is equivalent to an acquittal on those counts, and a judgment on the verdict is as to them a bar to further prosecution. People v. Dowling, 84 N. Y. 478. See also 24 N. Y. 100; Nahors v. State, 6 Ala. 200; Hilliard on New Trials, 147 ; Edgerton v. Commonwealth, 5 Allen, 514; Weinzorpflin v. State, 7 Blackf. 186; Billings v. State, 56 Ind. 101; Bonnell v. State, 64 Ind. 498; Stoltz v. People, 5 Ill. 168; State v. Finney, 42 Me. 384; State v. Cooper, 68 Mo. 120 ; State v. Hill, 30 Wis. 416.
    III. The action of the jury in getting possession, while deliberating upon their verdict, of a book containing statements of law, as to the crimes set forth in the indictment, although irregular, will not vitiate the verdict unless it be shown that the defendant was prejudiced thereby. People v. Draper, 1 N. Y. Crim. Rep. 138; People v. Hartung, 17 How. Pr. 85; (S. C. on Appeal), 4 Park. Cr. 319, 329 ; Baker v. Simmons, 29 Barb. 198; People v. Carnal, 1 Park. Cr. 256; People v. Ramson, 7 Wend. 423; Wharton's Cr. L. § 3291, and cases cited; Wilson v. Abrahams, 1 Hill, 211, 212; Purvis v. State, 35 Ark. 118; State v. Hopper, 71 Mo. 425.
    
      
       See People v. Platt, ante, p. 129.
    
   Barker, J.

The statute creating and defining the offense of which the defendant was convicted, is terse in expression as well as plain in its provisions. It declares that, A person who takes a female under the age of sixteen years for the purpose of prostitution, or sexual intercourse, or without the consent of her father, mother, guardian, or other person having legal charge of her person, for the purpose of marriage . . . is guilty of abduction, and punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.”

The only serious question presented is, as to what acts on the part of the accused person will constitute an unlawful and criminal taking within the sense and meaning of the statute.

We think it clear, in view of the nature of the wrong which the statute intended to punish, that it is not necessary to constitute the crime that the accused should in any case use any force or practice any fraud or deception, and that it is suffL cient, within the statute, if the female is induced by his request, advice or persuasion, to go from the place where the accused met and approached the prosecutrix with the request and solicitation for her to accompany him or meet him at some other place indicated by the accused, with the intent and purpose there to accomplish the wicked act of her defilement. The offense may be accomplished without an actual manual capture of the female, and it is not necessary that she should be taken against her will. The section as originally adopted required that the taking should be without the consent of the father, mother, guardian or other person having legal charge of the prosecutrix. To constitute the offense as the statute now reads, it is not necessary that the girl should be taken from her parents or other custodian of her person. If the construction which we have placed upon the statute is the correct one, then the evidence was sufficient to sustain the conviction, and the defendant’s guilt was established beyond much, if any, doubt.

As the unlawful act mentioned in the statute constitutes the crime of abduction, we are aided in giving construction to the statute by the definition and meaning.of the phrase “ abduction,” as the same is used by jurists, law writers and lexicographers. Blackstone defines abduction to be the taking and carrying away of a child of a parent or the wife of a husband, either by fraud, persuasion or open violence. 3 Blackstone’s Commentaries, 139, 140. When the word is used as a law phrase, Webster adopts and approves of this definition. The English statute on the same subject, 9 Geo. 4, chap. 31, section 20, provided: If any person shall unlawfully take or cause to be taken, any unmarried female, being under the age of sixteen years, out of the possession and against the will of her father, or mother, or of any other person having the lawful charge of her person, shall be guilty of a misdemeanor.” The English courts, giving construction to this statute, have frequently held, that there need be no force, actual or constructive, and that slight enticement and persuasion, by which the female either accompanies or meets the abductor is sufficient. Regina v. Mankeltow, 6 Cox Crim. Cases, 143; Regina v. Timmins, 8 Id. 401. In Regina v. Olivier, 10 Cox Crim. Cases, 403, the court said that, if the prosecutrix acted under the advice and persuasion of the accused, it constituted an unlawful and criminal taking within the meaning of the statute.

Upon the trial of an indictment founded upon a section of the Revised Statutes, which enacts, that every person who shall take any woman unlawfully, against her will, with intent to compel her by force, menace or duress to marry him, or to marry any other person, or to be defiled, it was held that it was not necessary for the prosecution to show that actual physical violence had been used by the prisoner, to constitute a taking of the prosecutrix against her will within the meaning of the section, but that it was sufficient if she had been induced by deceit or false pretenses of the prisoner to go to the place; and proof that she had been induced to go there on the pretense that she could find employment as a servant, constituted a violation of the law, and brought the case within the sense and meaning of the statute, and justified a conviction. Beyer v. People, 86 N. Y. 869 ; Schnicker v. People, 88 N. Y. 194.

We have looked into the case of Kaufman v. People (11 Hun, 82), where the indictment was founded on chapter 105 of the laws of 1848, and we are unable to find any point adjudicated contrary to the views which we have expressed.

The charge of the court was fair and intelligent, clearly presenting for the consideration of the jury all the legal propositions involved, to which the defendant interposed no exceptions, and we are unable to discover any reason for reversing the judgment, after considering the legal questions presented.

The motion for a new trial, after the verdict was rendered, upon the ground that the jury were guilty of misbehavior, was properly denied, and in reaching a conclusion on this question, Ave follow the case of People v. Draper (1 N. Y. Crim. Rep. 138; 28 Hun, 1), which is a decision of this court.

The omission of the jury to render a verdict upon the second and third counts, is not such an irregularity as should lead to a new trial; for the omission to find one way or the other is equivalent to an acquittal on those counts, and a judgment as to them is a bar to a further prosecution. People v. Dowling, 84 N. Y. 478.

As judgment has been pronounced upon the conviction, and there does not appear that there has been any stay in its execution, it is only necessary for us to order an affirmance.

Judgment and order affirmed.

Smith, P. J., Haight and Bradley, JJT., concur.

Note.—A female under eighteen years of age, living with her father, but temporarily on a visit to her uncle, was taken from h.er uncle’s house by defendant under an arrangement previously made with her while with her father, and was by him defiled. Held, that the female was taken from her father’s possession. State v. Round (Mo. Sup. Ct.), 6 Crim. Law Mag. 836, where the principal cases on “ taking,” are given in a note.  