some of the statutes his consent is not a defense, especially where the girl is taken for purposes of prostitution or sexual intercourse.56 And under some of them if such person does consent, he thereby becomes equally guilty with the abductor.57 It has been said that consent of such a person obtained by fraud is no defense, but this is at least doubtful.58 § 352. Age of female. To sustain a conviction under a statute punishing the abduction of a girl under a specified age, the girl must not be over the designated age.59 The word "woman" in a statute punishing the taking or detention of any woman with intent to marry or have carnal knowledge of her, has been held to embrace every female of the human race, including young girls.60 But it has been held that a statute punishing the taking of "any female" from her father, mother, guardian, or other person having the legal charge of her, without his or her consent, does not include the taking of a woman of the age of twenty-one years or over, unless she is under legal guardianship because of mental infirmity, or the like.61 The fact that the taker is ignorant of the girl's age and believes in good faith, and upon reasonable grounds, that the girl is above the age mentioned in the statute is no defense,62 unless the statute makes England. Reg. v. Hopkins, Car. & M. 254; Reg. v. Frazer, 8 Cox C. C. 446. 56 State v. Jamison, 38 Minn. 21, 35 N. W. 712; State v. Kebler, 228 Mo. 367, 128 S. W. 721; People v. Seeley, 37 Hun (N. Y.) 190; People v. Stott, 4 N. Y. Cr. 306, aff'd 42 Hun 660, 5 N. Y. Cr. 61, 4 N. Y. St. Rep. 736; State v. George, 93 N. C. 567. And see State v. Chisenhall, 106 N. C. 676, 11 S. E. 518. 57 State v. Jamison, 38 Minn. 21, 35 N. W. 712; State v. Kebler, 228 Mo. 367, 128 S. W. 721; State V. Feasel, 74 Mo. 524. 58 See People v. Lewis, 141 Cal. 543, 75 Pac. 189; People v. Cerami, 101 N. Y. App. Div. 366, 91 N. Y. Supp. 1027; Reg. v. Hopkins, Car. & M. 254. 59 People v. Stott, 4 N. Y. Cr. 306, aff'd 42 Hun 660, 5 N. Y. Cr. 61, 4 N. Y. St. Rep. 736; State v. Sullivan, 85 N. C. 506; Lopez v. State, 70 Tex. Cr. 71, 156 S. W. 217; Tores v. State (Tex. Cr.), 63 S. W. 880; Mason v. State, 29 Tex. App. 24, 14 S. W. 71; Anderson v. Com., 5 Rand. (Va.) 627, 16 Am. Dec. 776. 60 In Kentucky a girl under fourteen is within the protection of the statute. Howell v. Com., 12 Ky. Opinions 199; and so is a girl under twelve. Couch v. Com., 16 Ky. L. Rep. 477, 29 S. W. 29. 61 State v. Davidson, 134 Tenn. 482, 184 S. W. 18. 62 California. People v. Dolan, 96 Cal. 315, 31 Pac. 107; People v. Fowler, 88 Cal. 136, 25 Pac. 1110. Delaware. Brown v. State, 7 Pennew. 159, 74 Atl. 836, 25 L. R. A. (N. S.) 661. Illinois. Maguire v. People, 219 Ill. 16, 76 N. E. 67. Iowa. State v. Ruhl, 8 Iowa 447. knowledge of the age of such female an essential element of the crime.63 § 353. Chastity. Some of the statutes require the female to be of a chaste life and conversation,64 or of previous chaste character,65 Kansas. State v. Johnson, 85 Kan. 54, 116 Pac. 210. Mississippi. Riley v. State (Miss.), 18 So. 117. Missouri. State v. Johnson, 115 Mo. 480, 22 S. W. 463. New York. People v. Stott, 4 N. Y. Cr. 306, aff'd 42 Hun 660, 5 N. Y. Cr. 61, 4 N. Y. St. Rep. 736. Ohio. Studer v. State, 29 Ohio Cir. Ct. 33, aff'd 74 Ohio St. 519, 78 N. E. 1139. Texas. Tares v. State (Tex. Cr.), 63 S. W. 880, in effect overruling Mason v. State, 29 Tex. App. 24, 14 S. W. 71. England. Reg. v. Robins, 1 Car. & K. 456; Reg. v. Prince, L. R. 2 C. C. 154, 13 Cox C. C. 138; Reg. v. Booth, 12 Cox C. C. 231. Reg. v. Mycock, 12 Cox C. C. 28. 63 Under a statute punishing a person who induces or knowingly suffers any girl under 21 to resort to his premises for the purpose of sexual intercourse, knowledge of her age is essential, but it may be inferred by the jury from her personal appearance. Hermann v. State, 73 Wis. 248, 41 N. W. 171, 9 Am. St. Rep. 789. By express provision of the present English statute punishing the taking of a girl under eighteen out of the possession of her father, etc., with intention that she shall be unlawfully and carnally known, it is a defense if it is made to appear that the defendant had reasonable cause to believe that she was of or above the age of eighteen. Reg. v. Packer, 16 Cox C. C. 57. 64 Bradshaw v. People, 153 Ill. 156, 38 N. E. 652; Com. v. Whittaker, 131 Mass. 224. The word "conversation,'' as here used, means, "manner of living," "habits of life," " 'conduct.'' Bradshaw v. People, 153 Ill. 156, 38 N. E. 652. Such a provision requires that she shall possess actual personal virtue, as distinguished from a good reputation. Slocum v. People, 90 Ill. 274. In Illinois it is held that chastity is presumed, and that the burden is on the defendant to overcome the presumption. Bradshaw v. People, 153 Ill. 156, 38 N. E. 652; Slocum v. People, 90 Ill. 274. But in Massachusetts it is held that chastity must be proved by the state in the same manner as any other material allegation of the indictment, and that a conviction cannot be based on the presumption of chastity alone. Com. v. Whittaker, 131 Mass. 224. 65 People v. Roderigas, 49 Cal. 9. Such a provision requires actual personal virtue, as distinguished from reputation. Kauffman v. People, 11 Hun (N. Y.) 82; Carpenter v. People, 8 Barb. (N. Y.) 603; Lyons v. State, 52 Ind. 426. The word "previous" means immediately previous, and refers to a period terminating immediately previ ous to the commencement of the guilty conduct of the defendant. Carpenter v. People, 8 Barb. (N. Y.) 603. A girl who has fallen from virtue, but has subsequently reformed and become chaste, is within the protection of such a provision. Carpenter v. People, 8 Barb. (N. Y.) 603. or to have been before reputed virtuous.66 In the absence of any such requirement, it is generally held that previous chastity is not an essential element of the offense, 67 although there is some authority to the effect that even under such circumstances the girl must have been living a chaste and virtuous life at the time of the abduction.68 Subsequent unchastity is, of course, no defense.69 § 354. Purpose and intent-In general. Some of the statutes do not require the taking to be with any particular intent or for any particular purpose.70 But where the statute punishes a taking for 66 Such a provision protects both virtuous women and those reputed to be virtuous. It protects a virtuous woman even if she is not so reputed, and a woman bearing a reputation for virtue though she may have been guilty of some indiscretion in the past. State v. Dickerhoff, 127 Iowa 404, 103 N. W. 350. 67 People v. Flores, 160 Cal. 766, 118 Pac. 246, Ann. Cas. 1913 A 582; State v. Demousset, 71 Cal. 611, 12 Pac. 788; People v. Cook, 61 Cal. 478; State v. Baldwin, 214 Mo. 290, 113 S. W. 1123; State v. Bobbst, 131 Mo. 328, 32 S. W. 1149; State v. Johnson, 115 Mo. 480, 22 S. W. 463; People v. Stott, 4 N. Y. Cr. 306, aff'd 42 Hun 660, 5 N. Y. Cr. 61, 4 N. Y. St. Rep. 736; Com. v. Bowser, 61 Pa. Super. Ct. 107. In Kentucky it is not an essential element of the offense of detaining a woman against her will with intent to have carnal knowledge of her. Thomas v. Com., 188 Ky. 509, 222 S. W. 951; Cargill v. Com., 93 Ky. 578, 20 S. W. 782. In Iowa it is not an element of the offense of taking away a female and compelling her to be married or defiled. State v. Fernald, 88 Iowa 553, 55 N. W. 534. Even when previous chastity is not essential, the fact that the woman was a woman of the town may be shown as bearing on the question whether she was enticed or persuaded from the control of her parents, or went of her own accord, and with their knowledge and consent. Brown v. State, 72 Md. 468, 20 Atl. 186. 68 Griffin v. State, 109 Tenn. 17, 70 S. W. 61; Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074; Jenkins v. State, 15 Lea (83 Tenn.) 674. If she is living such a life at the time, it is no defense that she had previously on one or more occasions been guilty of improper conduct with other men. Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074; or with the defendant. South v. State, 97 Tenn. 496, 37 S. W. 210. 69 Scruggs v. State, 90 Tenn. 81, 15 S. W. 1074. 70 State v. Chisenhall, 106 N. C. 676, 11 S. E. 518. Under such a statute it is no defense that the defendant acted from religious and philanthropic motives, and in order to save the girl from the seclusion of a convent. Reg. v. Booth, 12 Cox C. C. 231. But in Reg. v. Tinkler, 1 Fost. & F. 513, where the defendant was indicted for the abduction of a girl under sixteen, and it did not appear that he had any improper motive, the jury was directed to acquit him if they thought he merely wished to have the child to live with him, and honestly believed that he had a right a particular purpose, the existence of such purpose must be alleged and proved, as where it is made an offense to take a female for the purpose of prostitution, or concubinage,73 or sexual intercourse,74 or marriage,75 or with intent to compel her by force, menace, or duress to marry or be defiled.76 The necessary intent may be inferred from the circumstances, however.77 72 § 355. Sexual intercourse. To warrant a conviction under a statute punishing taking for the purpose of sexual intercourse, or unlawful sexual intercourse, or with intent to have carnal knowledge, the specific purpose or intent must be shown.78 But it may be inferred by the jury from the acts and conduct of the accused.79 Unlawful sexual intercourse means sexual intercourse out of wedlock, and is not confined to such intercourse as is prohibited or made unlawful by some express provision of law.80 To come within a statute punishing a person who takes, receives or harbors a female for the purpose of prostitution or sexual intercourse, there need be no purpose on the part of the defendant to have intercourse with the girl himself. And it has been held that a person who induces a woman to have intercourse with himself is not within a statute making it an offense to procure a female to have illicit carnal connection with any man.81 Actual intercourse to the custody of the child, although he might have had no such right. 71 State v. Jamison, 38 Minn. 21, 35 N. W. 712; Vander Linden v. Oster, 37 S. D. 113, 156 N. W. 911. 76 Schnicker v. People, 88 N. Y. 192; Beyer v. People, 86 N. Y. 369. 77 An intent to compel a woman by force, menace, or duress to be defiled may be inferred from the fact that she was taken to a house of prostitution, and there forcibly defiled, after attempts to accomplish that end by solicitations and duress had failed. Schnicker v. People, 88 N. Y. 192. And see § 90, supra. 78 Brown v. Com., 188 Ky. 814, 224 S. W. 362; Couch v. Com., 16 Ky. L. Rep. 477, 29 S. W. 29; State v. Jamison, 38 Minn. 21, 35 N. W. 712; People v. Deckenbrock, 157 N. Y. App. Div. 379, 142 N. Y. Supp. 278, aff'd 209 N. Y. 604, 103. N. E. 1128; People v. Smith, 114 N. Y. App. Div. 513, 100 N. Y. Supp. 259; Weldon v. State, 165 Wis. 452, 162 N. W. 428. A statute punishing a taking "for any unlawful sexual intercourse,' covers a single act of intercourse. State v. Sanders, 136 La. 1059, 68 So. 125, Ann. Cas. 1916 E 105. 79 People v. Smith, 114 N. Y. App. Div. 513, 100 N. Y. Supp. 259. And see Brown v. Com., 188 Ky. 814, 224 S. W. 362. 80 State v. Savant, 115 La. 226, 38 So. 974. 81 Such a provision is designed to is not an essential element of the offense,82 although it may be shown. as bearing on the question of intent.88 The offense is distinct from, and not a degree of the crime of rape or of carnally knowing a female under the age of consent.84 But a person may be convicted of it although the intent was to use force and hence to commit rape.85 § 356. Marriage. To constitute the offense of taking a girl from a person having the legal charge of her without his consent. for the purpose of marriage, the prescribed intent must be shown.86 But a conviction may be had upon proof that the defendant intended to marry the girl himself, or intended that she should be married to another person.87 It has been held that a statute punishing abduction for the purpose of marriage means a valid marriage; 88 but it has also been held that the fact that the defendant was already married is no defense, and cannot be shown.89 A clandestine marriage has been held to be one contracted without the conditions precedent prescribed by law, such as a publication of bans, procuring a license, or the like.90 § 357. Concubinage. When the statute punishes a taking for the purpose of concubinage, this purpose must be shown.91 But it is immaterial whether the defendant intended the concubinage to be punish the offense of procuring or pandering, and not seduction. People v. Roderigas, 49 Cal. 9. 82 State v. Keith, 47 Minn. 559, 50 N. W. 691; People v. Stott, 4 N. Y. Cr. 306, aff'd 42 Hun 660, 5 N. Y. Cr. 61, 4 N. Y. St. Rep. 736. 83 State v. Keith, 47 Minn. 559, 50 N. W. 691. 84 Com. v. Pennington, 189 Ky. 182, 224 S. W. 644; Head v. Com., 174 Ky. 841, 192 S. W. 861; Lowry v. Com., 23 Ky. L. Rep. 1240, 63 S. W. 977. The statute creates a greater offense than assault, and a lesser one than rape or an attempt to commit rape. Couch v. Com., 16 Ky. L. Rep. 477, 29 S. W. 29. There is a statement to the contrary in Gravitt v. Com., 184 Ky. 429, 212 S. W. 430. 85 Howell v. Com., 12 Ky. Opinions 199. 86 State v. Sager, 99 Minn. 54, 108 N. W. 812; DeHart v. State, 87 Tex. Cr. 21, 218 S. W. 1047. 87 State v. Sager, 99 Minn. 54, 108 N. W. 812. 88 United States v. ZesCloya, 35 Fed. 493. 89 People v. Cerami, 101 N. Y. AppDiv. 366, 91 N. Y. Supp. 1027. 90 Black's Law Dict.; Hay v. State, 68 Fla. 458, 67 So. 107. 91 United States v. ZesCloya, 35 Fed. 493; Slocum v. People, 90 III274; State v. Baldwin, 214 Mo. 290, 113 S. W. 1123; State v. Gibson, 108 Mo. 575, 18 S. W. 1109. |