State v. Angel

Supreme Court of Kansas

State v. Angel

42 Kan. 216

CourtSupreme Court of Kansas

DecidedJuly 15, 1889

StatusPublished

Cited by8 cases

This text of 42 Kan. 216 (State v. Angel) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Angel, 42 Kan. 216 (kan 1889).

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Opinion

The opinion of the court was delivered by

Horton, C. J.:

This was a criminal prosecution under § 47 of the erimes-and-punishments act. This section reads:

“Every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child, shall upon conviction be punished by confinement and hard labor not exceeding five years, or imprisonment in the county jail not less than six months.”

The principal facts in the case are undisputed. On the 8th day of March, 1889, W.,B- Willis resided in Elk county, in this state, with his family, consisting of his wife and five children, the youngest of which was about two years old, and is the child described in the information. Upon that date Mrs. Etta Willis, the wife of W. B. Willis, left her husband, and with the assistance of the defendant was driven to the Indian Territory. She took with her to the Indian Territory her child, and the child has continued to be in her custody and under her control. She is its mother. The father and mother are the natural guardians of the persons of their minor children, and each parent equally so with the other. (Const., art. 15, § 6; The State v. Jones, 16 Kas. 608.)

As Mrs. Willis, the mother of the child, had the equal right with her husband, the father, to the actual care and control of the child, it is clear that she could not be punished [223]*223under the provisions of said § 47, for taking and carrying the child away from the father. If it be true that James Angel, the defendant, assisted her to leave her husband and in so doing assisted her in taking her child, he cannot be convicted under § 47, because he only assisted the mother of the child, who had the same right to the care and control of the child as the father. The mother had the lawful charge of the child all of the time, and neither the mother nor Angel is guilty of any criminal violation of said § 47.

The judgment of the district court' must be reversed, and as the facts are undisputed the defendant will be discharged.

All the Justices concurring.

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The opinion of the court was delivered by

Horton, C. J.:

This was a criminal prosecution under § 47 of the erimes-and-punishments act. This section reads:

“Every person who shall maliciously, forcibly or fraudulently lead, take or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain or conceal such child from its parent, guardian, or other person having the lawful charge of such child, shall upon conviction be punished by confinement and hard labor not exceeding five years, or imprisonment in the county jail not less than six months.”

The principal facts in the case are undisputed. On the 8th day of March, 1889, W.,B- Willis resided in Elk county, in this state, with his family, consisting of his wife and five children, the youngest of which was about two years old, and is the child described in the information. Upon that date Mrs. Etta Willis, the wife of W. B. Willis, left her husband, and with the assistance of the defendant was driven to the Indian Territory. She took with her to the Indian Territory her child, and the child has continued to be in her custody and under her control. She is its mother. The father and mother are the natural guardians of the persons of their minor children, and each parent equally so with the other. (Const., art. 15, § 6; The State v. Jones, 16 Kas. 608.)

As Mrs. Willis, the mother of the child, had the equal right with her husband, the father, to the actual care and control of the child, it is clear that she could not be punished [223]*223under the provisions of said § 47, for taking and carrying the child away from the father. If it be true that James Angel, the defendant, assisted her to leave her husband and in so doing assisted her in taking her child, he cannot be convicted under § 47, because he only assisted the mother of the child, who had the same right to the care and control of the child as the father. The mother had the lawful charge of the child all of the time, and neither the mother nor Angel is guilty of any criminal violation of said § 47.

The judgment of the district court' must be reversed, and as the facts are undisputed the defendant will be discharged.

All the Justices concurring.

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Bluebook (online)

42 Kan. 216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-angel-kan-1889.

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