c. 35-Abduction of wards.]-Conceruing children, males or females, whose marriage belongeth to another, taken or carried away, if the ravisher have no right in the marriage, though after he restore the child unmarried, or else pay for the marriage, he shall nevertheless be punished for his offence by two years' imprisonment, and if he do not restore or do marry the child after the years of consent, and be not able to satisfy for the marriage, he shall abjure the realm or have perpetual imprisonment. . . . ... 24 & 25 Vict. c. 100 (Offences against the Person Act, 1861), s. 53— Abduction of a woman on account of her fortune.]-Where any woman of any age shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or shall be a presumptive heiress or co-heiress, or presumptive next of kin, or one of the presumptive next of kin, to any one having such interest, whosoever shall, from motives of lucre, take away, or detain such woman against her will, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person, and whosoever shall fraudulently allure, take away, or detain such woman, being under the age of twenty-one years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person, shall be guilty of felony, and being convicted thereof shall be liable. . . to be kept in penal servitude for any term not exceeding fourteen years .; and whosoever shall be convicted of any offence against this section shall be incapable of taking any estate or interest, legal or equitable, in any real or personal property of such woman, or in which she shall have any such interest, or which shall come to her as such heiress, co-heiress, or next of kin as aforesaid; and if any such marriage as aforesaid shall have taken place, such property shall, upon such conviction, be settled in such manner as the Court of Chancery in England or Ireland shall upon any information at the suit of the attorney-general appoint. [This section re-enacts 9 G. 4, c. 31, s. 19, with the additions italicized.] Sect. 54-Abduction by force with intent to marry, etc.]-Whosoever shall, by force, take away or detain against her will any woman of any age, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person, shall be guilty of felony, and being convicted thereof shall be liable. . . to be kept in penal servitude for any term not exceeding fourteen years. [This section re-enacts 10 G. 4, c. 34, s. 22 (1).] ... 48 & 49 Vict. c. 69 (Criminal Law Amendment Act, 1885), s. 20, and sched. -Person charged and husband or wife of person charged to be competent but not compellable witnesses.]-Post, p. 906. 61 & 62 Vict. c. 36 (Criminal Evidence Act, 1898), ss. 1, 4, and sched.— Evidence of accused and husband or wife of accused.]-Ante, pp. 392–398. Indictment under first part of 24 & 25 Vict. c. 100, s. 53. Central Criminal Court, to wit:-The jurors for our Lord the King upon their oath present, that J. S. [in the parish of A.C.P. and within the 57 jurisdiction of the said court], on the first day of June, in the year of our Lord feloniously, and from motives of lucre did take away and detain ("take away or detain") one A. N., against her will, she, the said A. N., then having a certain present and absolute interest ("any interest whether legal or equitable, present or future, absolute, conditional or contingent") in certain real estate ("real or personal estate"), to wit [here describe the estate], with intent her the said A. N. to marry (“to marry or carnally know her, or to cause her to be married or carnally known by any other person"); against the form [as ante, p. 840]. Add a count stating generally the nature of some part of the property, and, if the intent be doubtful, add counts varying the intent. Formerly, if a woman was taken away forcibly in one county, and was married or defiled with her own consent, without any continuing force, in another county, the offence was not complete in either county, and the offender could not be indicted (R. v. Gordon, 1 Kuss. Cr. (4th ed.) 707; 3 Russ. Cr. (6th ed.) 255; but now as actual marriage or defilement is not necessary, this difficulty cannot occur: and see 7 G. 4, c. 64, s. 12 (ante, p. 43). Felony: penal servitude for not more than fourteen nor less than three years, or imprisonment with or without hard labour, not exceeding two years. 24 & 25 Vict. c. 100, s. 53; 54 & 55 Vict. c. 69, s. 1, sub-ss. 1, 2, (ante, p. 235). As to requiring the offender to enter into recognizances and find sureties for keeping the peace, 24 & 25 Vict. c. 100, s. 71, (ante, p. 778). This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126). Evidence. Prove that the defendant took away and detained A. N. against her will. If she be taken away in the first instance with her own consent, but afterwards refuse to continue with the offender, and be forcibly detained by him, the offence is within the statute. See 1 Hawk, c. 41, (forcible marriage), s. 7. Prove also, that A. N. had the interest stated in the indictment, from which the motives of lucre may be presumed. Prove the intent stated in the indictment by the declarations or acts of the defendant, or by circumstances from which the intent may be inferred. See R. v. Barratt, 9 C. & P. 387. Under the old law the woman must have been married or defiled: Fulwood's case, Cro. Car. 488: R. v. Swendsen, 14 St. Tr. 559; 1 Hale, 660, 661; cf. 4 Bl. Com. 209: Brown's case, Ventr. 243; 3 Keb. 193; and see ante, p. 398: but this is no longer necessary, the intent to marry or carnally know being sufficient. R. v. Perry (3 Russ. Cr. (6th ed.) 666), cited in R. v. Sergeant, Ky. & M. 352, 354, Abbott, C.J. ; 1 Hawk. c. 41, s. 13, forcible marriage; 1 East, P. C. 454 (ante, p. 398). By virtue of s. 4 of the Criminal Evidence Act, 1898 (61 & 62 Vict. c. 36), ante, p. 396, the husband or wife can be called for the prosecution or for the defence, without the consent of the accused spouse, but appears not to be compellable. See 48 & 49 Vict. c. 69, s. 20 (post, p. 906). The offender is incapable of taking any interest, legal or equitable, in the real estate of the woman, or in which she has any such interest, or which shall come to her as any such heiress, etc. And if a marriage shall have taken place, the property shall, on conviction of the offender, be settled in such manner as the High Court (Chancery Division), at the suit of the attorney-general, shall appoint. 24 & 25 Vict. c. 100, s. 53. R. v. Burrell, L. & C. 354; 33 L. J. (M. C.) 54; 9 Cox, 368, is a decision on that part of s. 53 which relates to the fraudulent taking away of women under the age of twenty-one. The facts proved in that case, which were complicated, were held not sufficient to sustain a conviction. OF A GIRL UNDER SIXTEEN YEARS OF AGE. Statute. 24 & 25 Vict. c. 100 (Offences against the Person Act), s. 55.]—Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour. [This section re-enacts 9 G. 4, c. 31, s. 20.] 48 & 49 Vict. c. 69 (Criminal Law Amendment Act, 1885), s. 20—Evidence of defendant and husband and wife of defendant.]—See post, p. 906. 61 & 62 Vict. c. 36 (Criminal Evidence Act, 1898), ss. 1, 4, and sched.Evidence of defendant and husband or wife of defendant.]-See ante, pp. 392-398. 4 Edw. 7, c. 15 (Prevention of Cruelty to Children Act, 1904), ss. 12-18 and sched. 1-Procedure and evidence.]-See ante, pp. 882-885, 887. Indictment. (24 & 25 Vict. c. 100, s. 55.) Commencement as in the last precedent]-unlawfully did take and cause to be taken one A. N. out of the possession and against the will of R. N., her father ("out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her"), she the said A. N. then being an unmarried girl under the age of sixteen years, to wit, of the age of fifteen years; against the form [as ante, p. 840]. The allegation "being an unmarried girl," is sufficient. R. v. Moore, 2 Lev. 179: R. v. Boyall, 2 Burr. 832 (ante, p. 84). If the offence is continuous it is not necessary to specify the date of the acts alleged to constitute the offence. 4 Edw. 7, c. 15, s. 18 (4), and sched. 1 (ante, pp. 885, 887). Misdemeanor: imprisonment, with or without hard labour, not exceeding two years. 24 & 25 Vict. c. 100, s. 55. As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, Id. s. 71 (ante, p. 778). This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126). Evidence. Prove that the defendant took A. N. out of the charge of her father or mother, or of some person having the lawful care or charge of her. Cf. s. 7 of the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), and the cases thereon, post, pp. 902, 903. Take.]-The taking need not be by force, actual or constructive, and it s immaterial whether the girl consents or not. R. v. Mankletow, Dears. 159; 22 L. J.(M. C.) 115; 6 Cox, 143: see R. v. Kipps, 4 Cox, 167 : R. v. Booth, 12 Cox, 231. Where the defendant went in the night to her father's house, and placed a ladder against her window, and held it for her to descend, which she did, and eloped with him, this was held to be a "taking of her out of the possession of her father" within the statute; although she herself proposed the plan to the defendant. R. v. Robins, 1 C. & K. 456. So, where the girl was persuaded by the defendant to leave her father's house and go away with him, without the father's consent, and accordingly left her home alone by a preconcerted arrangement between them, and went to a place appointed, where she was met by the prisoner, and they then went away together, without the intention of returning this was held to be a taking of the girl out of her father's possession within the statute, since up to the moment of her meeting with the defendant, she had not absolutely renounced her father's protection. R. v. Mankletow (supra). So, where the defendant, by concert with the girl, met her and stayed with her away from her father's house for several nights, sleeping with her; and the jury found that the father did not consent, and that the defendant knew he did not; and that he took the girl away with him in order to gratify his passions, and then let her return home and not with the intention of keeping her away from her home permanently; the conviction was held right. R. v. Timmins, Bell, 276; 30 L. J. (M. C.) 45; 8 Cox, 401. Where a man induces a girl, by promises of what he will do for her, to leave her father's house and live with him, he may be convicted under this statute, although he is not actually present or assisting her at the time she leaves her father's roof, R. v. Robb. 4 F. & F. 59. If the girl leaves her father, without any persuasion, inducement or blandishment held out to her by the defendant, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her father's custody, yet his not doing so is no infringement of this statute, for the statute does not say he shall restore her, but only that he shall not take her away. R. v. Olifier, 10 Cox, 402, Bramwell, B. If the suggestion to go away with the prisoner comes from the girl only, and he takes merely the passive part of yielding to her suggestion, he is entitled to an acquittal. R. v. Jarvis, -20 Cox, 249, Jelf, J. It is submitted that the ruling to the contrary in R. v. Biswell, 2 Cox, 257, is not law. See discussion of the authorities, R. v. Mackney, 29 Vict. L. R. 22. And where a young woman persuaded a girl under sixteen to go away with her from her father's house to London, telling her that her (the defendant's) mother wanted a little girl as a servant, and would give her 51. wages, and the girl left her father's house voluntarily for that purpose, this was held not to be a taking within 9 G. 4, c. 31, s. 20, of which 24 & 25 Vict c. 100, s. 55 is a re-enactment. R. v. Meadows, 1 C. & K. 399: see R. v. Handley, 1 F. & F. 648: sed quære. If, however, the girl while living with her father, leaves his house for a mere temporary purpose, intending to return to it, she is still in his possession within the meaning of the statute; and if when so out of the house the defendant induces her to run away with him, he is guilty of the misdemeanor created by this statute. R. v. Mycock, 12 Cox, 28, Willes, J.; and see R. v. Baillie, 8 Cox, 238. Where a servant girl, under sixteen years of age, had permission from her master to visit her parents from Sunday to Monday night, and went to see them on Sunday for a few hours only, and then told them (by previous arrangement with the prisoner) that she was going back to her service, instead of which she remained with the prisoner all night, and did not return to her service until some days afterwards, it was held (1) that the girl was not in the possession of her father at the time of the alleged offence, but under the lawful charge of her master, and (2) that the above facts would not warrant a conviction for abduction from the master. R. v. Miller, 13 Cox, 179, Lush, J. If the defendant, at the time he took the girl away, did not know, and had no reason to know, that she was under the lawful care or charge of her father, mother, or some other person, he is not guilty of this offence. R. v. Hibbert, L. R. 1 C. C. R. 184; 38 L. J. (M. C.) 61; 11 Cox, 246. The defendant met a girl in the street, and induced her to go with him to a neighbouring town, where he seduced her. They returned together, and he left her where he had met her. The girl then went to her home, where she lived with her father. The defendant made no inquiry, and did not know who the girl was, or whether she had a father living or not, but he had no reason to, and did not, believe that she was a girl of the town. Upon these facts it was held that the defendant could not be found guilty of an offence against s. 55 of 24 & 25 Vict. c. 100. Id. See also R. v. Green, 3 F. & F. 274. It was held to be an offence against 4 & 5 Ph. & M. c. 8, s. 3 (of which 24 & 25 Vict. c. 100, s. 55, is in substance a re-enactment), to take away a natural daughter under sixteen from the custody of her putative father. 1 Hawk. c. 41, s. 14 (seduction): R. v. Cornforth, 2 Str. 1162: R. v. Sweeting, 1 East, P. C. 457. Upon the death of the lawful father, the mother retains her authority, though she marry again, unless the father has disposed of the custody of his child to others; the assent of the second husband is not material. Ratcliff's case, 3 Co. Rep. 38. Against the will, etc.]-Prove also that she was taken away against the will of the person who had the care or charge of her. If the defendant induce the parents, by false and fraudulent representations, to allow him to take the child away, this is an abduction within the statute. R. v. Hopkins, C. & Mar. 254. It seems to be doubtful whether, if the parent once consent, but afterwards dissent, a subsequent taking away can be said to be against the will of the parent. Calthrop v. Axtel, 1 East, P. C. 457; 3 Mod. 168. It was held not to be clear under 4 & 5 Ph. & M. c. 8 (rep.), whether it would be an offence to take away a girl against the consent of her parent, but by the consent of one who has the temporary care of her. 1 East, P. C. 457. Where the girl's mother had encouraged her in a lax course of life, by permitting her to go out alone at night and dance at public-houses, from one of which she went away with the defendant, Cockburn, C.J., ruled that she could not be said to be taken away against the mother's will within the meaning of 9 G. 4, c. 31, s. 20 (of which the present section is a re-enactment). R. v. Primelt, 1 F. & F. 50. Under sixteen, etc.-Prove that she was under the age of sixteen years, and unmarried. It is no defence that the defendant did not know her to be under sixteen, or might suppose from her appearance that she was older; R. v. Robins, 1 C. & K. 456: R. v. Olifier, 10 Cox, 402: R. v. Mycock, 12 Cox, 28: R. v. Booth, 12 Cox, 231; or even that the defendant bonâ fide believed and had reasonable ground for believing that she was over sixteen. R. v. Prince, L. R. 2 C. C. R. 154; 44 L. J. (M. C.) 122; 13 Cox, 138. If she was under the age of fourteen years, and taken away by force or fraud, the defendant must be indicted as in the next precedent but one. The husband or wife of the defendant may be called for the prosecution or defence without the consent of the defendant; 61 & 62 Vict. c. 36, s. 4 (ante, p. 396); but appears not to be a compellable witness. 48 & 49 |