People v. Simmons

The defendant was convicted j>f child stealing as provided in section 278 of the Penal Code. He made a motion for a new trial but his motion was denied and he has appealed from the judgment of conviction and the order denying his motion. ¡

Por some time prior to September, 1934, the defendant had been living in Oakland. He was about thirty-three years of age, had been married, and was the father of two children. However, on June 4, 1934, his wife obtained an interlocutory decree of divorce. Por some time Mrs. Ruth E. Kair had been living in an apartment house at 1219 Brush Street in the city of Oakland. The defendant first met the Kairs in October, 1933, when he rented an apartment in the building in which they resided. At that time he was known as Jesse Styles. When he came to the apartment he brought a woman to live with him but when Mrs. Kair learned that the woman was not his wife she directed him to move. He did so, but in! March returned and again rented an apartment. He remained only one month and again Mrs. Kair directed him to vacate the apartment. She did. not see him again until the mfinth of August when she saw him holding her daughter’s hand down in the front yard where they were half hidden behind a bush. Mrs. Kair approached him, slapped him and said: “You dirty black cur, don’t touch your hand on this girl again or y¡ou will regret it the last day you live. ’ ’ The defendant left the premises but told a neighbor that Mrs. Kair had slapped him and that she would be sorry for it some day. Prior to September, 1934, the defendant and Lucille Kair, a minor, met at times and went out together at night, although never with the consent of Mrs. Kair. They talked of marriage and about going away but nothing was said to Lucille’s mother. The defendant suggested to Lucille that they get married but also stated that he could not do so under the laws of California until the divorce decree became final. However, they discussed the possibility of going outside of the state and claimed that by, so doing they could legally marry. On September 28, 1934, Mrs. Kair left Oakland for a two-day visit and left her children in the care of Mrs. George, a tenant in the same building. Por some time prior to that date Mrs. Kair had a savings account which stood in the joint names of herself and Lucille. The account had been so made that Lucille could withdraw money for

Section 278 of the Penal Code is as follows: “Definition and punishment of child-stealing. Every person who maliciously, forcibly, or fraudulently takes or entices away any minor child with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge ¡of such child, is punishable by imprisonment in the state prison not exceeding twenty years. ’ ’ The offense so defined is against the parent and not against the child. (People v. Gillispie, 104 Cal. App. 765 , 767 [ 286 Pac. 502 ].) The word “forcibly” as used in this and similar statutes does not necessarily imply the use of physical force. (1 C. J. 285.) The word: “maliciously” as used in the statute does not, at least, havti a narrower meaning than as defined in subdivision 4, section 7, of the Penal Code. The word “fraudulently” is very broad in its meaning. “No definite and invariable rule can j be laid down as a general proposition defining fraud, as it includes all surprise, trick, cunning, dissembling, and unfair ways by which another is deceived.” (Wells v. Zens, 83 Cal. App. 137 , 140 [ 256 Pac. 484 ].) As the language of the statute is in the disjunctive it was sufficient if the proof showed that the defendant’s act was either malicious, forcible or fraudulent. The prosecution was not bound to prpve all three. The statute does not include “concealment” nor “detention”. It does contain as an element “with intent to detain and conceal”. As proof of that element the courts will consider the acts and conduct of the parties, together with all the circumstances of the case both before and after the act complained of. (People v. Black, 147 Cal. 426 , 431 [ 81 Pac. 1099 ], People v. Taylor, 88 Cal. App. 495 , 500 [ 263 Pac. 560 ], and People v. Annunzio, 120 Cal. App. 89 , 94 [ 7 Pac. (2d) 739 ].) “It cannot be gainsaid that proof of intercourse with the girl by the appellant while they were ¡in Los Angeles tended directly to show the intent with which she was enticed from her parents.” (People v. Edenburg, 88 Cal. App. 558 , 568 [ 263 Pac. 857 ].) When the pyoof is

The judgment and order appealed from are affirmed.

Nourse, P. J., and Spence, J., concurred.