I cannot concur in the majority opinion for the reason that I am of the opinion that the evidence is insufficient to sustain the judgment of child stealing. The statute defining this offense reads as follows: "43-3202. Stealing or enticing child from parent or guardian. — Every person who maliciously, forcibly or fraudulently takes or entices away any child under the age of seventeen (17) years with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable * * *."
It must be noted that the taking or enticing away must be maliciously, forcibly, or fraudulently accomplished, and in addition *Page 206 thereto must be accomplished with the specific intent to detain and conceal from the parent. I have read and reread the reporter's transcript of the evidence, consisting of only seventy-two pages. I have figuratively searched it with a fine tooth comb, trying to find therein sufficient evidence to indicate that the taking of the child was maliciously, forcibly, or fraudulently accomplished, with the specific intent to detain and conceal the child from its parents. It must be noted that the intention must be to detain and conceal. To detain means "to hold or keep as in custody; to restrain, especially from proceeding": to conceal means "to hide or withdraw from observation; to cover or keep from sight; to prevent the discovery of." What did this defendant actually do?
To make my position clear I think it is absolutely essential that I orient myself and make it possible for anyone who reads this opinion to orient himself in the city of Yuma and know what course or route the defendant took in walking with the child.
First, the Colorado River at Yuma flows west from the east; all the streets except Main Street run east and west; the avenues run north and south; Main Street runs north and south. The San Carlo Hotel is on the northeast corner of Main and First Streets; the First National Bank at the northwest corner of Second and Main; Sanguinetti's store on the northeast corner of Second and Main; McCallum's Drug Store on the northwest corner of Third and Main; the Catholic church on the southwest corner of Fourth and Main; the music store on the southeast corner of Fourth and Main. The home where this child lived was located on the east side of Main Street about halfway between Fourth and Fifth Streets. The child in question met the defendant in front of the music store at the corner of Fourth and Main. They walked one block east to Gila Street, turned to the right and proceeded a few steps south on Gila, at which time the defendant asked the child if she wanted to go down to see the oil tanks which were located on Gila between Sixth and Seventh Streets. The yard surounding the oil tanks (Union and Texaco) is enclosed by a high barbwire fence. When the child said that she did not want to go down by the tanks, they turned, retraced their steps to the corner, and walked north on Gila toward First Street. They walked one block to Third, a second block to Second Street, passing in front of the Southern Pacific Railroad depot on the east side of Gila Street midway between Second and Third Streets. Arriving at Second Street they continued north to about midway of the block (between First and Second Streets). There at the suggestion of the child — "I told the man I wanted to go out this way because I could get home quicker" — they turned west and crossed through the southeast quarter of the block referred to as the vacant lot in the majority opinion. Across this portion *Page 207 of the lot there is a well-beaten path running through the bushes mentioned. They did not hesitate nor stop and defendant did not suggest that they get off the path or go into the bushes. This vacant lot is east of the alley running north and south from First to Second Street and is midway between Main and Gila Streets. On arriving at the intersection of the alley and Second Street, they walked south in the alley known as Maiden Lane. Maiden Lane is not a typical alley, but is what might be called a semi-street. There are business buildings and residences on each side of the Lane. They walked south on Maiden Lane to the laundry, which is about halfway between Second and Third Streets, and there the defendant left her. All in all, the defendant walked with the child one block on Fourth Street; two and one-half blocks on Gila Street; practically one-half block through the vacant lot; and one-half block on Maiden Lane. The entire distance traversed was in the business district of the city at approximately two-thirty in the afternoon. With reference to the path across the lot, the chief of police testified that it was commonly used by the residents of the city and that there was nothing unusual in its use by the general public. The child testified that defendant did not touch her other than to hold her hand in crossing the streets. When they arrived at the laundry, he gave her a nickel and told her to go on down town. He did not harm her; he said not one indecent word to her; nor did he make a single indecent or suggestive gesture.
On direct examination the child testified that when she was with defendant she was "scared"; that on some portion of the trip she had tears in her eyes. With reference to this portion of her testimony, the questions and answers on cross-examination were as follows:
"Q. What made you have those tears? A. I don't know.
"Q. The man hadn't hurt you any? A. No.
"Q. He didn't make you scared, did he? A. No.
"Q. Did he scare you at any time while you were with him, Ann? A. No.
"Q. You don't know why you had those tears on your cheeks then, do you? A. No.
* * * * * *
"Q. The laundry was on your way home, wasn't it? A. Yes.
"Q. And he took you up to the laundry and you went on home from there? A. Yes.
"Q. And when was the first time you had tears on your cheeks? Do you remember? A. I don't remember.
"Q. Was it when you got to the laundry? A. I don't remember.
"Q. Did you have tears on your cheeks after you got home? A. I was crying then. *Page 208
"Q. When? A. When I got home.
"Q. Were you crying when you were over by the laundry? A. I don't think so.
"Q. What made you cry, Ann? A. I don't know.
"Q. Were you afraid of this man? A. No.
"Q. What made you cry then? Can you tell us? If he didn't hurt you and if you were not afraid of him, why did you cry? A. I don't know.
"Q. He didn't frighten you in any way, did he, Ann? A. No."
As indicated in the majority opinion, the testimony of the child was not consistent with and was not corroborated by the hearsay testimony that the court admitted, supposedly being statements that the child made shortly after the occurrence. The testimony of Mrs. Bagby was admitted over objection. The hearsay statements of the child's father were not objected to. The hearsay testimony of Mrs. Bagby was admitted on the theory that the child's remarks to her were spontaneous exclamations induced by mental shock or stress or nervous excitement "Which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, rather than reason and reflection, and during the brief period when consideration of self-interest could not have been fully brought to bear, the utterance may be taken as expressing the real belief of the speaker as to the facts just observed by him." Keefe v. State of Arizona, 50 Ariz. 293, 72 P.2d 425, 427. It must be remembered that the father testified that he and his wife had over a period of years constantly instructed the child not to walk with strangers. She undoubtedly knew that she had disobeyed her parents. Her statements to Mrs. Bagby were not voluntary. Mrs. Bagby testified that the child made no statements until she questioned her, and that she had to encourage her to talk. The hearsay statements offered by the father were recitations of statements made by the child three hours after the incident. The father testified that when he first took the child to retrace the route taken she was too confused to be helpful, and that he did not again attempt to have her retrace the route until her confusion had subsided and she was able to orient herself and recall clearly the details of the places walked and things seen. It is more probable to believe that if the child was laboring under any stress or excitement it was induced by her sense of guilt at having disobeyed her parents, for she testified positively that she was not "scared" on the trip and that the defendant had done nothing to induce any fright in her. The child was not suffering from any external or nervous shock induced by any conduct of *Page 209 the defendant. In view of her own testimony with reference to the conduct of the defendant, it is more likely that her nervousness and state of agitation were induced by the cross-examination of her by Mrs. Bagby. This six-year-old child found herself in a squall of unfounded adult furor and indignation, and responded naturally. I think the hearsay testimony should have been excluded. The rule stated in the Keefe case (supra) is applicable to the fact situation here.
The reasoning of the majority opinion is unfathomable to me especially after the declaration therein contained — "There is nothing to indicate malice in this case." It seems to me that the essence of the offense is the intent to detain and conceal from the parents. The offense is against the parent, not against the child. People v. Gillispie, 104 Cal. App. 765, 286 P. 502. Child stealing is the cruelest and most dastardly offense known to the law. He who intentionally takes or entices away a child with the intent to detain and conceal it from its parents must know that his conduct on discovery will tear out the heart and soul of the mother. Any person guilty of child stealing must possess an abandoned and malignant heart. Yet the majority opinion says "There is nothing to indicate malice in this case."
"`Malice' and `maliciously' import a wish to vex, annoy or injure another person, or an intent to do a wrongful act, established either by proof or presumption of law." Section43-103, A.C.A. 1939.
"Malice is a wicked and mischievous purpose, which characterizes the perpetration of an injurious act without lawful excuse. State v. Coella, 3 Wash. 99, 28 P. 28, 33." 26 Words and phrases, Perm. Ed., Malice, page 145.
If the defendant was not actuated by malice, then he had no intent to vex, annoy or injure the parents.
It is said that the intent or intention is manifested by the circumstances connected with the offense, and that it is quite proper and indeed necessary to consider the entire conduct of the individual before and after the particular act subject to the scrutiny. This I have attempted to do. I am not able to discern from any of the evidence in the record, which is presumably the only evidence that was before the jury, any wicked or mischievous purpose on the part of the defendant. One actually guilty of child stealing should be relentlessly pursued and prosecuted; little or no consideration should be given to him.
I think this judgment should be reversed and the case remanded for a new trial. Defendant should be convicted only when the facts demonstrate beyond a reasonable doubt that he is guilty of child stealing, and a conviction should not be dependent upon "giving the testimony every possible intendment in favor of the verdict." (Majority opinion) *Page 210
On Motion for Rehearing
UDALL, Judge.
The defendant's petition for rehearing, filed January 16, 1947, of the judgment of this court dated December 23, 1946, affirming his conviction of child stealing, Sec. 43-3202, A.C.A. 1939, presents a novel situation. The writer of this opinion, as a new member of the court, was disposed to take no part in the determination of said motion on the theory that the defendant had had "his day in court" both in the trial court and here. However, as my associates pointed out, "his day in court" is not complete until the motion for rehearing is determined. To break the existing deadlock I have therefore carefully examined the entire record and read the cited cases.
In view of the detailed recitation of the facts, as well as the analysis of the statutory and case law appearing in majority and minority opinions heretofore rendered, I fear anything that I might add would be in the nature of supererogation.
The application of our penal statute on child stealing to the facts in this case has given rise to some honest differences of opinion. I fully realize that this court is not the trier of the facts and that this court will only order the rehearing of an appeal, where it appears that probably there was a miscarriage of justice on the former hearing. The four major propositions relied upon in this petition for rehearing were all urged in defendant's opening brief. I see no occasion to consider the alleged improper statements of the County Attorney in his argument to the jury, the admissibility of hearsay evidence, or the correctness of the instructions, for the real crux of the matter is whether the court erred in failing to sustain the defendant's motion for a directed verdict at the close of the State's case, because of the insufficiency of the evidence to warrant a conviction. As to this question, I am fully in accord with the dissentin opinion of Judge LA PRADE and concur in his analysis of both the evidence and the law.
In further support of this conclusion these additional comments are submitted. The offense of child stealing is an offense against the parent and not against the child. People v. Gillispie, 104 Cal. App. 765, 286 P. 502; People v. Simmons,12 Cal. App. 2d 329, 55 P.2d 297. It is sufficient for the statutory requirement that the taking or enticing be either malicious, or forcible, or fraudulent. People v. Casagranda, 43 Cal. App. 2d 818, 111 P.2d 672. It is immaterial that the child goes voluntarily, People v. Gillispie, supra; People v. Torres,48 Cal. App. 606, 192 P. 175; People v. Munos, 84 Cal. App. 6,257 P. 549; People v. Smith, 17 Cal. App. 2d 468, 62 P.2d 436 and the actual length of time that the child is detained is not important. People v. Annunzio, 120 Cal. App. 89, 7 P.2d 739; People v. Kocalis, 140 Cal. App. 566, 35 P.2d 584. There must be both an *Page 211 intent to detain and an intent to conceal though actual detaining and concealing are unnecessary. People v. Edenburg, 88 Cal. App. 558, 263 P. 657; People v. Simmons, supra. Finally, proof of the intent to detain and conceal must be objective, derived from all the facts and surrounding circumstances of the case both before and after the act charged to be an offense. People v. Black,147 Cal. 426, 81 P. 1099; People v. Munos, supra; People v. Simmons, supra; People v. Casagranda, supra.
Admitting that the defendant's getting the child to walk with him constitutes forcible enticement under the terms of the statute, and further admitting that his actions show an intent to detain the child (though this seems highly questionable from the evidence), it seems impossible to find anywhere the exhibition by the defendant of an intent to conceal the child from her parents. The child was never more than four blocks from home on a walk with the defendant, which must, from the evidence, have taken no more than twenty-five to thirty-five minutes during the middle of the afternoon principally over main streets in the town. During this time there is no evidence of one improper move or suggestion or of one improper word spoken.
A man, who intended to conceal a child from its parents, would scarcely go about it in this manner. The defendant knew the location of the child's home, as she pointed it out to him early in the walk. The defendant had no reason to believe that the child's parents might not be walking the same thoroughfares over which he traveled. The only time the defendant left the busy streets was to take a well-traveled short-cut through a vacant lot, no more than one-half block long, and this was suggested by the child. The defendant left the child no more than one block farther from her home than her father had left her earlier in the afternoon.
In People v. McGinnis, 55 Cal. App. 2d 931, 132 P.2d 30, 32, the court said: "The common definition of the word `conceal' is `to hide or withdraw from observation; to cover or keep from sight.'" None of the defendant's actions exhibit any intent to hide or withdraw the child from observation or keep her out of the sight of her parents.
It is my considered opinion that the flimsy evidence adduced at this trial and the reasonable inferences drawn from the proven facts fail, as a matter of law, to justify the verdict of the jury or the judgment pronounced thereon. None of the reported cases relied upon by the State to support this judgment rested on as weak a factual reed as that shown in this case.
The petition for rehearing is granted and the dissenting opinion of Judge LA PRADE as supplemented by this opinion is now adopted as the judgment of this court. The judgment of the lower court is reversed *Page 212 and the cause remanded for a new trial. It is so ordered.
LaPRADE, J., concurs.