People v. Gillispie

BARNARD, J.

The defendant was found guilty by a jury of the crime of child stealing, a felony, and the jury also found that he had suffered two prior convictions for felonies. This is an appeal from the judgment based upon the verdict, and from an order denying a motion for a new trial.

It appears from the record that the defendant, who is about twenty-eight years old, came, about May 2, 1929, to reside with his father and stepmother in the town of Elsinore, California. There were other children in the family, including a fifteen year old daughter of defendant’s stepmother, by a former marriage. On May 21, 1929, defendant represented to his stepmother that a party was being given at Wildemar, a few miles away. With the permission of the stepmother, defendant left the home around 7 o’clock in the evening with the girl and her brother, ostensibly to attend this party. So far as the parents knew, they never returned until after the defendant was arrested. The defendant took the girl to the state of Nevada, where he married her under an assumed name. They then went into Utah and later into Oregon, where the defendant was arrested about a month after he left Elsinore. The mother testified that she did not hear from her daughter until some time in June, and that she had not consented to the daughter’s going away with defendant, other than to attend this party. The evidence shows that instead of going to a party,

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they picked up another girl at Wildemar, and later in the evening returned home, secured their personal belongings without the knowledge of the parents, and departed. The evidence shows they proceeded at once into Nevada, traveling all night the first two nights; and that later they went to see certain relatives of the girl in Salt Lake City. The defendant testified that the trip and marriage had been planned before they started to the supposed party at Wilde-mar.

Appellant’s first contention is that the trial court erred in sustaining an objection to a question asked of him on direct examination, “Did she ever talk to you about going away from home?” The argument is made that if the girl accompanied appellant of her own volition, and not as a result of force, fraud or enticement, this would constitute a defense to the charge of child stealing. Even if it be conceded that an answer to the question should have been permitted, the record shows that the appellant was later permitted to go into the matter fully and to narrate at length, the circumstances under which the girl accompanied him. lie was permitted to testify that he did not take the girl by force or use any fraud or deceit; that he did not try to persuade the girl to go with him, and that he did not endeavor to prevent her from returning to her mother. He was permitted to testify that he had heard the girl express a desire to leave home because she was not satisfied, and further, that she was the one that desired to go away. In any event, it is immaterial whether the girl accompanied appellant voluntarily or not.