The plaintiffs in error were found guilty under an information which charged ■ that they “did unlawfully, fel-oniously, fraudulently and forcibly carry off and kidnap one Leonard Biggs, an infant child of the age of one month, and under, from his, the said Leonard Biggs’, place of residence in said county with felonious intention then and thereby of carrying said Leonard Biggs away from his said place of residence and into the State of Colorado and without the consent of the father of the said Leonard Biggs, said acts not being then and there done in pursuance of the laws of the State of Wyoming or of the United States.”
The statute provides that “whoever kidnaps or forcibly or fraudulently carries off or decoys from his place of residence, or arrests or imprisons any person, with the intention of having such person carried away from his place of residence, unless it be in pursuance of the laws of this state, or of the United States, is guilty of kidnaping.”
The evidence is undisputed that the plaintiff in error, Viola Biggs, and the complaining witness, one John William Biggs, were married in November, 1902, and lived together as man and wife until about May 15th, 1903, when he abandoned her, and they never lived together afterwards. She gave birth to this child on August 16th, 1903, and about the 10th day of September following sent her mother, the plaintiff in error, Annie E. Trout, with it to Denver for the alleged purpose of placing it in an orphans’ home. At the time of the birth of the child Viola Biggs was living with her mother, Mrs. Trout. Biggs was not present at its birth and was not living with, supporting or in any way caring for his wife. Upon the contrary, prior to this time he had notified the physician who, he understood, was to attend her and who afterwards did attend her, in her confinement, that he would not be responsible for the charge for his services. He was never in the custody or possession of the child prior to its being sent to Denver and did not make any attempt to obtain such custody or possession. Upon the *98contrary, he knew it was being sent- away, saw them taking it to the railroad station and made no protest or objection whatever. Indeed, according to his own statement, he never saw the child until after it had been sent away.
Under these circumstances, it cannot be seriously contended that the evidence even tends to establish the crime of kidnaping. It is too plain for argument that the mere removal of the child to Colorado by its mother was not a crime. If she was its custodian, it was not only her right, but, if she performed her duty in regard -to its care and nurture, it was a matter of necessity that she should decide where it was to be kept and cared for. To say nothing of other elements necessary to constitute the offense, the removal must have been from the possession, actual or constructive, of the lawful custodian or against the will of someone authorized to object/ The child itself was incapable of objection, and it is not suggested that it was against the will of any person, unless the father. But not only is there no evidence that it was taken from his custody or against his will or contrary to his wishes, but his own testimony and all the evidence in the case rebuts any such suggestion. He not only abandoned the sole custody to the mother, but,'by standing by without objection when he knew it was being carried off, he gave an-implied consent to its removal. There was no evidence in the case not entirely consistent with the innocence of the defendants and the Attorney' General, representing the State in this court, concedes that their conviction was erroneous. This necessarily disposes of the case.
But it may be proper to say further that, so far as can be gathered from the- record, it seems to have been the theory of the prosecuting attorney, concurred in by the District Court, that by law the father being entitled to the guardianship of the minor child in preference to the mother, he in some way in this case was the custodian of the child by force of the statute. But, upon this proposition, it is sufficient to say that, under such statutes, it is the actual *99state of things and not the existence of a legal relation that is contemplated. (People v. Carrier, 46 Mich., 442; Nugent v. Powell, 4 Wyo., 173; State v. Ruhl, 8 Ia., 447.) And in the case of an illegitimate child, though, as between-the. parents, the mother has the better claim to its custody, yet, when the natural father has the actual custody, he has been held to be its custodian under the terms of a statute similar to the one in this case. (Bish. Stat. Cr., Sec. 633.) But ‘ from the statement"' of facts already set out, it is evident that, even if the father had b$en not only entitled to the custody, but in the actual custody, the plaintiffs in error were not guilty of any crime under the statute, for the reason that he was consenting' to the removal. The judgment will be reversed. Reversed.
Knight, J., concurs. Potter, J., did not sit.