I am unable to concur in the majority opinion because I think the proof is not sufficient to sustain a conviction under Section 3270, Revised Statutes 1919. To violate that statute the child must have been taken away, etc., "with the intent to detain or conceal such child from its parent," etc. In otherIntent. words, the child must have been taken away for the purpose of detaining or concealing such child from its parent, guardian or other person lawfully in charge of the child, and not for some other purpose. To sustain a conviction under Section 3270, the evidence must tend to prove that appellant took away the child with the specific intent denounced by said section and not with some other and different intent.
Appellant filed no brief in this court. The record shows that he offered a demurrer at the close of all the evidence and assigned the overruling thereof as error in his motion for new trial. The sufficiency of the evidence is therefore for our consideration. The majority opinion disposes of this assignment with the following:
"The defendant's challenge of the sufficiency of the evidence cannot be seriously considered, in the face of the facts and circumstances developed at the trial of this case. Obviously, the jury believed the testimony of the State's witnesses, which, if true, leaves no room for substantial doubt of the defendant's guilt."
The assignment cannot properly be disposed of in such summary manner. There is no direct proof in the record concerning the intent of appellant in taking away the child. His intent may properly be inferred from all the facts and circumstances. [State v. Simon (Mo. Sup.), 295 S.W. 1076, l.c. 1079.]
The circumstances in this case point clearly to an intent or purpose on the part of appellant to ravish the little girl or to accomplish just what appellant said he actually did, to-wit, to gratify his sexual *Page 217 passion in an unnatural way and, when such gratification was accomplished, to release her. There is not a single fact stated in the opinion which points to an intent or purpose on appellant's part "to detain or conceal" the little girl from her parents longer than was incidental to the accomplishment of that purpose.
Of course, there was temporary detention and concealment, such as would be necessary before appellant could accomplish his lascivious purpose; but such detention and concealment were purely incidental and did not characterize the intention with which appellant took the child. Such detention and concealment were directed against all the world and not particularly against the custody of the parent. Section 3270 denounces an offense against the custody of the parent or guardian and not an offense against the person of the child. It defines an offense closely akin to kidnapping or abduction.
If the evidence had tended to prove that appellant took the child away from her parents with intent to detain or conceal herand, at that time and while she was so concealed, intended to do what he said he did do to her or to do any other act with respect to her, regardless of what it was, Section 3270 would have been violated; but not otherwise. The intent to detain or conceal her from her parents or guardian must have been his purpose in whole or in part in taking the child away and it is not sufficient that such detention or concealment was merely incidental to his purpose.
Suppose the proof had been that the child's parents for some reason, good and sufficient or otherwise, had forbidden appellant to see the child or to have anything to do with her, and appellant, because of an excessive and unrestrained fondness for the child, had pulled her into his automobile, just as the evidence shows that he did do, and it had further appeared that he had taken her away and had concealed her from her parents for the innocent purpose of being with her and enjoying her childish prattle or for the purpose of buying her candy or of taking her to a moving picture show or, possibly, of showing her the animals at the zoo, with intent thereafter to return her safely to her parents. Would anyone contend that appellant had thereby incurred the penalties of Section 3270 and might be sent to the penitentiary for twenty years for such incidental detention or concealment. Yet detention or concealment of the child would have been present in that case the same as in the case at bar. The concealment would have been for a different purpose, it is true, but the same intent to conceal would exist in each case; that is, such concealment as would be purely incidental, and in fact essential, to the accomplishment of his purpose in respect to the child. *Page 218
It is not necessary to determine of what crime appellant was guilty. His act was at least a most aggravated assault. Although appellant's act was unspeakably revolting, he cannot be convicted of a crime, the statutory definition of which does not cover his conduct, merely because the punishment, provided for the violation of that statute, more nearly comports with our ideas of the punishment appropriate to appellant's conduct. We should not permit the revolting circumstances and want of sufficiently severe punishment for the crime actually committed, as provided by existing statutes, to result in the announcement of bad law
I respectfully dissent.