
    COCKRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 22, 1913.)
    1. Kidnapping (§ 5*) — Enticing Away Child — Sufficiency of Evidence.
    On a trial for enticing a minor from the custody of her parent, evidence held insuflicient to support a conviction.
    [Ed. Note. — For other cases, see Kidnapping, Cent. Dig. § 11; Dec. Dig. § 5.*]
    2. Ceiminal Law (§ 959*) — Motions fob New Trial — Scope of Hearing.
    On a motion for a new trial, where there was attached to the motion the affidavit of a person who did not testify on the trial, the court should have considered not only the evidence but the entire record, and, if the record disclosed that accused was guilty of no violation of law, the conviction should not be permitted to stand, even though proper diligence was not used to obtain such person’s testimony on the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2406-2411; Dec. Dig. § 959.*]
    3. Kidnapping (§ 1*) — Enticing Away Child — “Entice.”
    A young lady who, rightfully or wrongfully, feeling outraged at her uncle’s treatment of Ms daughter, expressed her sentiments, said she would leave home before she would stand such treatment, and subsequently, after the cousin had left her home of her own will, against her ’ uncle’s wishes, went with her father and cousin to a party, and then accompanied the cousin in her hiding and flight from home, thus giving moral and active assent to her leaving home, was not guilty of knowingly enticing her cousin from the custody of her parent, under Pen. Code 1911, art. 1047, since “entice,” means to solicit, persuade, procure, allure to ill, attract, lure, draw by blandishment, coax, or seduce, and imports an initial, active, and wrongful effort, and under the statute accused must at least in part be the procuring cause of the minor leaving her parents.
    • [Ed. Note. — For other cases, see Kidnapping, Cent. Dig. §§ 1-7; Dec. Dig. § 1
    
    For other definitions, see Words and Phrases, vol. 3, p. 2410; vol. 8, p. 7651.]
    Appeal from Coryell County Court; G. E. Johnson, Judge.
    Dula Cockrell was convicted of an offense, and she appeals.
    Reversed and remanded.
    H. E. Bell, County Atty., and R. B. Cross, both of Gatesville, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otiler eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

The appellant was prosecuted and convicted under article 1047 of the Penal Code, which provides that, if any person shall knowingly entice any minor away from the custody of the parent, he shall be punished by a fine not less than $25 nor more than $200.

The evidence in this case would show that appellant is a young lady, 19 years of age, and that she lived with her father, Simon Cockrell; that her uncle Henry Cockrell had a girl named Edna, 18 years of age; that these girls associated with each other, and were cousins and intimate as friends. Edna is the girl whom appellant is charged with having enticed away from her home.

It appears that appellant was frequently at the house of her uncle, at least, until a short time before the alleged commission of this offense, and that Edna was frequently at the home of appellant’s father, her uncle Simon. Henry Cockrell objected to his daughter going to dances and parties. One night, some weeks before the alleged offense, Edna left home and went to church with a young man, with the knowledge of her mother, but without the knowledge or consent of her father. Her father whipped her for so doing, and appellant, being at Henry Cockrell’s home, remarked to Edna that she would not stand such treatment, but would leave home before she would submit to it. Henry Cockrell then told Lula, appellant, not to again come to his house, and it might be inferred that subsequent to this remark by Henry Cockrell the girls did not visit each other with the knowledge of Henry Cockrell. Henry Cockrell was called to Lampasas, and remained away from home one night. That night Edna spent with Lula at her home, and they, in company with Simon Cockrell, attended a party. Edna returned home next day, and did not want her mother to tell her father about her spending the night at Simon Cockrell’s and her going to the party. Her mother informed her that she would tell her father, when Edna remarked, “If you do, he will whip me again,” and informed her mother that, if she would mot promise not to tell her father, she was going to leave home. Her mother did not make the promise, and she packed her clothing in a sack, and called her cousin Lula over the telephone, and asked her to come down, as she had something to tell her. Lula said she was busy, and could not come, but for Edna to come to her home, and informed her that her brothers were hauling wood, and she could come with them. Edna took her clothes, got in the wagon, and went to Simon Cockrell’s and' Edna, Lula, and Simon Cockrell went to a party again that night. While at the party they learned that Henry Cockrell had returned home, and was hunting for his daughter, Edna, and had a shotgun with him. Simon Cockrell suggested to the girls that they return home to his, Simon Cockrell’s, house, and they started. Just before getting home, they saw Henry Cockrell drive up to Simon’s house, and the girls got out and hid, while Simon went on to the house. What took place when the two brothers met is not disclosed by the record; but later Simon Cock-rell returned to them, and carried them to Mrs. Carroll’s, where they remained all the next day, and the next night Edna decided to go to her uncle’s, Blaine Cockrell’s, at Lampasas. It is shown that at the suggestion of Mrs. Carroll Lula accompanied Edna to their Uncle Blaine’s home; Mrs. Carroll furnishing the money. When they arrived at Blaine Cockrell’s, apparently he was made acquainted with the circumstances, and he spirited her away, and the record would disclose that she is now with Mr. Bradley, in Bryan county, Okl.

Attached to the motion for a new trial is the following affidavit of Edna Cockrell: “My name is Edna Cockrell. I am 19 years old; my last birthday having been on the 4th of this month. On Monday before Christmas Sister Alafare had a few harsh words; but I did not think anything of that. But just after our little quarrel Papa came in, and said that, ‘when his children had to act that way, that they had stayed around him plenty long.’ On Thursday after that time Papa went to Lampasas, and I went to spend the night with my cousin, Lula Cockrell. When I was getting ready to go to Lula’s, Mama said that I had just as well take my things along with me, and fussed at me lots. After I came back from Lula’s on Friday morning, Mama said, ‘Have you got your stay out?’ and I told her, ‘No,’ and she said to go back and stay until I got my stay out. That night I went with Lula, Uncle Simon Cock-rell, and his son Ed, to a party at Mr. Chas. Jones’, and while I was there at the party I was told that Papa was looking for me with a gun. As soon as I heard this 1 went to Uncle Simon, and told him that if Papa was looking for me with a gun that I did not want to see him, and asked him and the other folks to go with me to his house. Before we got to Uncle Simon’s house we heard that Papa was at Uncle Simon’s, and I was afraid to go on there, so I asked Lula and Uncle Simon to go with me to Mrs. Carroll’s, and I spent the night there that night. Saturday about 4 o’clock I saw Papa coming with a gun, so I begged Lula to go with me and hide, which we did. We hid in the loft at Mrs. Carroll’s. I could not understand what he was saying to Mrs. Carroll, therefore do not know what happened much. Saturday night, about 5 or 6 o’clock, I begged to Lula to go with me to Lampasas, as X was afraid that Papa would come back, and if he did X was afraid that he would shoot me. We went on to Uncle Blaine’s that night, getting there about 3 or 4 o’clock in the morning. There was two boys with us, one with me, and one with Lula. Lula did not beg me to leave home, and had nothing to do with me leaving, neither did Uncle Simon or any one else, as I was just in fear that Papa would kill me or beat me up. I am certainly pleased with the place I am staying, and was never treated as well before in my life; I am at home with Mr. Bradley and his wife, and they are good to me as if I was their child. When I left Uncle Blaine’s I came on with him to Durant, and was at Mr. Bradley’s until Uncle Blaine put me in school at Sherman, Tex., and then I was advised that Papa was looking for me again, and I came back to Durant, and have been here since. I would have gotten to have gone to the Presbyterian College here; but after Papa came up here and raised such a racket they did not want to take me there. I don’t think that Papa treated me exactly right at home, and neither any one of the other children, therefore I was not satisfied. Nobody had anything to do with me leaving home, as I was tired of living in such a place, and being treated as I was. I have answered all the questions I know about, as the facts, and nobody was to blame except me and my own folks for me leaving. Edna Cockrell.”

While perhaps the court ruled correctly that, if appellant desired the evidence of Edna Cockrell on her trial, she should have made some effort to secure her depositions before announcing ready for trial, and this alone would not be ground for a new trial; but, in passing on the motion for a new trial, not only the evidence on the trial but the entire record should be considered by the court, and, if this record discloses that the prisoner on trial is guilty of no violation of the law, in our opinion, it would be wrong to permit a conviction to stand, even though proper diligence had not been used.

The law desires the punishment of no innocent person, and this record convinces us that appellant is not guilty of the offense of enticing Edna Cockrell away from the custody of her parents. It would seem to us that, if any one in censurable, it would be the brothers of Henry, Simon and Blaine Cockrell, more than this young lady. Prom the record in this cause, as made by the state, the most she can be said to have done is that, rightfully or wrongfully, she felt outraged at the way Henry Cockrell was acting toward his daughter Edna; that she expressed such sentiments, and said she would leave home before she would stand such treatment; that subsequently, against her uncle’s consent, she went with her father and Edna to a party, and then accompanied her in her hiding and flight from home, thus giving moral and active assent to Edna leaving home — but Blaine Cockrell appears to be the person who placed the girl beyond the limits of the state, and he did so intending to educate her.

The question presented is, If Lula did all the state’s evidence would show her to have done, would this law make her guilty of enticing Edna from the custody of her parents? According to Mr. Bouvier, “entice” means to solicit; to persuade; to procure— citing 12 Abb. Pr. U. S. 187. Am. & Eng. Enc. of Law says: Entice means to allure to ill; to attract; to lure; to draw by blandishments ; to coax. Cyc. gives the definition: To allure to ill; to attract, to seduce; to coax; a word which may import an initial, active, and wrongful effort. Worcester, in his dictionary, gives the word the same meaning as given by Am. & Eng. Enc. of Law, and, as used in our statute in this provision of the Code, we think it must be shown the minor left the home of its parents at the instance, suggestion, and by the persuasion of the person accused — the-person before he1 can be adjudged guilty under this statute must, at least, be in part the procuring cause of the minor leaving her parents. In this case the record does not prove that appellant was the procuring cause of the minor leaving her home; but, on the other hand, it tends strongly to show she left of her own will, and received only the protection of her uncles and cousin after she had abandoned her home. It may be that from a moral standpoint they should have persuaded, or attempted to persuade, Edna to return to her father. This they did not do; but their failure to do so would not render them guilty of a violation of the law.

Deeming the evidence insufficient to sustain the conviction, we do not deem it necessary to discuss the other questions raised.

The judgment is reversed and remanded.  