
    The People of the State of New York, Resp’t, v. John DeLeon, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March, 10, 1888.)
    
    1. Criminal law—Kidnapping—Sufficiency of evidence.
    The defendant was indicted and convicted of thekidnapping of Sarah Bowes with intent to cause her to be taken out of thestate andtobekeptand detained against her will. The evidence showed that the defendant under the false pretences that employment had been secured for her as governess, in the family of one Madame De Bien, at Panama, induced the said Bowes to take passage on a steamer for Aspinwall, for the purpose of engaging in that service, when in truth and in fact said De Bien was the keeper of a house of prostitution at Panama, for which the defendant acted as her pro • curer, and that his object and purpose in inducing the prosecutrix to go to Panama were that she should become an inmate of such house. Held, that there was sufficient evidence to support the conviction.
    3. Same —Penal Code—§§ 211 and 213—Intent.
    
      Held, That the consent of the said Bowes having been procured by fraud was as if no consent had been given, and the fraud being a part of the orig.nal scheme the intent of the defendant was to cause the said Bowes to be sent out of the state, against her will. That this construction was consistent with Penal Code, §§ 211 and 213.
    Appeal from a judgment of the supreme court, general term, first department, affirming a judgment of the court of general sessions, entered upon the verdict of a jury convicting defendant of the crime of kidnapping.
    
      John D. Townsend, for app’lt; James Fitzgerald, for resp’ts. .
    
      
       Affirming 13 N. Y. State Rep., 588.
    
   Andrews, J.

The indictment in the first count, charges that the defendant on the 1st day of September, 1886, at the city of New York, with force and arms, did “feloniously and wilfully inveigle and kidnap one Sarah Bowes, with intent to cause her, the said Sarah Bowes, without authority of law, to be taken out of the state, and to be: kept and detained against her will.”

The second count is like the first, except that it charges; that the intent of the defendant was to send the said Sarah Bowes, against her will, to Aspinwall, in the state of Pan • ama'. The evidence on the part of the prosecutor, which was uncontradicted, shows that the defendant, under the false pretenses that employment had been secured lor her as a governess in the family of one, Madame DeBlen, at Panama, induced the proseutrix to take passage on a. steamer for Aspinwall, for the purpose of engaging in that, service, when in truth and in fact the said Madame DeBlen was the keeper of a house of prostitution at Panama, for which the defendant acted as procurer, and that his object and purpose in inducing the prosecutrix to go to. Panama were that she should become an inmate of such house. Fortunately before reaching Aspinwall, the prosecutrix was apprised of the true character of Madame De Bien, and, by the aid of fellow passengers, was enabled to> return to New York, and was thereby rescued from the fate to which the defendant sought to consign her. The only serious question is whether the evidence made out an offense within section 211, of the Penal Code.

The section defines the crime of kidnapping, and in the first sub-division declares that a person, who ‘ ‘ seizes, confines, inveighs or kidnaps another with intent to cause her without authority of law, to be securely confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service, or kept, or detained against her will,” is guilty of kidnapping. There was no actual enforcement or detention of the prosecutrix, nor any actual force used by the defendant.

The prosecutrix consented to go to Aspinwall, and voluntarily took passage for that port. But she did not consent to go there to enter a house of prostitution. The evidence shows'that she would not have consented to go at all, except for'the fraud practiced upon her by the defendant. She consented to go for a lawful and innocent purpose, and the defendant knowing that she was seeking; honest employment, procured her consent to leave the: state under pretence that such employment had been secured for her, but secretly designing that che should become an inmate of a brothel. He doubtless supposed that the prosecutrix, finding herself helpless and friendless in a foreign land, without means or chance of .succor, would yield to his nefarious design. The statute uses, among other words, the word “inveigle.” There are two elements which must be found in the conduct of the defendant to constitute the offense:

First. Seizure, confinement, or kidnapping, which ordinarily imply actual force, or an inveiglement, which, in the ordinary sense of the word implies the acquiring of power over another by means of deceptive or evil practices, not accompanied by actual force; and,

Second. An intent by the defendant to cause the prosecutrix to be sent out of the state against her will.

There was, as has been said, no actual force. There was fraud and deception by which the will of the prosecutrix was subject to that of the defendant, and made subject to his control, which satifies, we think, the charge of inveiglement in the indictment and established the first of the two elements mentioned.

The second essential elment of the crime, viz.: an intent to cause the prosecutrix to be sent out of the state against her will, is less plainly disclosed in the evidence and raises a question of more difficulty. It does not appear that the defendant contemplated using actual force at any time. But he did contemplate procuring the prosecutrix to consent to go out of the state, and this by means of fraud and deception, without which he knew that she would not consent. Did the defendant, under the circumstances, intend that the prosecutrix should be sent out of the state against her will,' within the meaning of the statute, or is the statute only applicable where the intent to cause another to leave the state, contemplates physical coercion to that end?

In Reg v. Hopkins (Car. & M., 254), the case of an indictment for the abduction of an unmarried girl under sixteen years of age, “against the will” of her father, it appearing that the consent of the parents was induced by fraud, the indictment was sustained, and Gurney, B., said, “ I mention these cases to show that the law has long considered fraud and violence to be the same.” The language is very comprehensive, and if taken in its broadest meaning seems scarcely consistent with the English cases which hold that the false personation of the husband, whereby a. married woman consents to intercourse with a stranger, does not constitute a ravishment of the wife. Reg v. Clarke, 6 Cox C. C., 412; Reg v. Young, 14 id., 114.

In Queen v. Dee (Crown Cases Reserved, Ireland, Crim. Law Mag., vol. 6, p. 220, 1884), the court refused to follow the English cases and adopted the contrary view upon what, seems to us very satisfactory grounds.

The case of People v. Beyer (86 N. Y., 370) is quite apposite on the question of what constitutes a taking “ against the will.” The defendant 'in that case was indicted under a section of the Revised Statutes, which declared that “Every person who shall .take any woman unlawfully againt 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,” etc., shall, upon conviction, be punished, etc.

It was held that the defendant having, by the false representation that he had procured, for the prosecutrix, a situation as a servant in a respectable family, induced her to go with him to a house of prostitution, with intent to compel her to be defiled, was guilty under the statute, and that the inducing the prosecutrix to accompany him under the circumstances was a taking “ against her will,” within the statute. The principal decided covers the present case. The consent of the prosecutrix having been procured by fraud, was as if no consent had been given, and the fraud being a part of the original scheme, the intent of the defendant was to cause the prosecutrix to be sent out the state against her will. We think this construction of section 211, is not inconsistent with section 213. That relates to a consent to the very purpose of the defendant. The examination of the witness Bonsall, as to confessions of the defendant, was carried, perhaps, beyond the legal limit. Part of the evidence of this witness was clearly competent, and this and the other evidence in the case, none of which was controverted, clearly established the crime charged, and the error if any did not prejudice the defendant.

The judgment should be affirmed.

All concur.  