Henry Edward Randall.

A treatise on the law of instructions to juries in civil and criminal cases, with forms of instructions approved by the courts (Volume 2) online

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i.v



THE LIBRARY

OF

THE UNIVERSITY

OF CALIFORNIA

LOS ANGELES

SCHOOL OF LAW



GIFT OF



FRANK L. SIKON3
^756 S. SPRIKG ST.
l.t)S ANGELES. QAkl



A TREATISE



ON THE LAW OF



INSTRUCTIONS TO JURIES

IN CIVIL AND CRIMINAL CASES
WITH FORMS OF INSTRUCTIONS

APPROVED BY THE COURTS



BY THE

EDITORIAL STAFF OF THE WEST PUBLISHING COMPANY

UNDER THE SUPERVISION OF

HENRY E. RANDALL



VOLUME II



1922

VERNON LAW BOOK COMPANY

KANSAS CITY, MO.



Copyright, 1022

BY

VERNON LAW BOOK CO.
(Randall Inst.Jur.)

T ,



TABLE OF CONTENTS



VOLUME II



PART TWO

FORMS OF INSTRUCTIONS

Chapter Sections

39. AbdiKtion 540-554

40. Abortion 555-575

41. Abstracts of Title 576

42. Abuse of Process 577-581

43. Abutting Owners 582-592

44. Accident Insurance 593-619

45. Accord and Satisfaction 620-628

46. Account, Action on 629-632

47. Account Stated ; 633-637

48. Acknowledgment 638-640

49. Adjoining Landowners 641-656

50. Adultery 657-669

51. Adverse Possession 670-739

52. Alteration of Instruments 740-758

53. Amusement Enterprises 759-763

54. Animals 764-810

55. Apprentices 811-812

56. Arbitration and Award 813-818

57. Architects 819-824

58. Arrest 825-830

59. Arson 831-837

60. Assault and Battery 838-919

61. Assignments 920-921

62. Assignment for Benefit of Creditors 922-932

63. Assumpsit 933-936

64. Attachment 937-950

65. Attorney and Client 951-983

66. Bailment 984-1000

67. Bankruptcy 1001-1009

68. Banks and Banking 1010-1037

69. Bastardy 1038-1053

70. Bigamy 1054-1059

71. Bills and Notes 1060-1135

Inst.to Juries (iii)



nn



6676G;



IV TABLE OF CONTENTS

Chapter Sections

72. Board!! of Trade 1136

73. Bonds 11.37-1138

74. Boundaries 1139-1178

75. Breach of Promise to Marry 1174-1197

76. Breach of the Peace 1198-1200

77. Bribery 1201-1200

78. Bridges 1207-1229

79. Brokers 12.30-1281

80. Building and Construction Contracts 1282-1324

81. Building and Loan Associations 1325-1327

82. Burglary 1328-1360

83. Cancellation of Instruments 1361-1369

84. Carriers 1370-1761

85. Cautionary Instructions 1762-1770

86. Champerty and Maintenance 1771-1772

87. Chattel Mortgages 1773-1797

88. Collision 1798-1799

89. Compromise and Settlement 1800-180<J

90. Concealing Birth 1807-1808

91. Conspiracy 1809-1819

92. Continuance 1820

93. Contracts 1821-1889

94. Corporations 1890-1919

95. Counties 1920-1924

96. Covenants 1925-1929



INSTRUCTIONS TO JURIES



INST.TO Juries (1019)'



PART TWO
FORMS OF INSTRUCTIONS



CHAPTER XXXIX
ABDUCTION

A. Criminal Prosecution

§ 540. Elements of offense.
540(1). Kentucky.
540(2). Missouri.

541. Custody from which female taken.

541(1). California.
541(2). Michigan.
541(3). Missouri.

542. What constitutes taking, enticement, or detention.

542(1). Kansas.
542(2). Kentucky.
542(3). Michigan.
542(4). Missouri.

543. Character of cohabitation — What is marriage.

544. Clandestine marriage.

545. What constitutes concubinage and duration of cohabitation.

545(1). Kansas.
545(2). Missouri.

546. Use of force or persuasion.

546(1). Georgia.
546(2). Kansas.
546(3). Mississippi.
546(4). Missouri.
546(5). North Carolina.

547. Placing in custody by defendant.

548. Elfect of want of chastity of female.

548(1). Missouri.
548(2). Tennessee.

549. Place to which abducted female taken and length of absence.

550. Ignorance of age of complaining witness.

551. Presumption as to chastity of prosecuting witness.

B. Civil Liability

552. Right of parent to sue.

553. Use of force as element of cause of action.

554. Defense of lack of chastity.

See, also, Seduction ; Rape.

A. Criminal Prosecution

§ 540. Elements of offense
§ 540(1). Kentucky

The court instructs the jury that if they believe from the evi-
dence beyond a reasonable doubt that the defendant, , in this

Inst. TO Juries (1021)



§ 540(1) INSTRUCTIONS TO JURIES 1022

county and before the finding of this indictment, unlawfully and

willfully took and detained the prosecuting- witness, , against

her will and consent, with the intent to have carnal knowledge of
her himself, then and in that event the jury will find the defend-
ant guilty.^

The court instructs the jury that if they believe from the evi-
dence beyond a reasonable doubt the defendant, , in

county, , state of , before , did unlawfully, will-
fully and feloniously take and detain , a female, and not the

wife of him the said , against her will, with intent to have

carnal knowledge with her, they should find the defendant guilty
and fix his punishment at confinement in the state penitentiary for

a period of time not less than nor more than years,

in their discretion.

If upon the entire case the jury have a reasonable doubt of the
defendant having been proven guilty from the evidence, they should
find him not guilty.^ .

§ 540(2). Missouri

You are instructed that by the word "concubinage," as used in
the information and in these instructions, is meant the act or
practice of a man cohabiting in sexual intercourse with a woman — •
a female with whom he is not married. If the jury believe and
find from the evidence that the defendant, , did take the pros-
ecuting witness, , from her father, and that she was at the

time a female under the age of years, for the purpose of

cohabiting with her in sexual intercourse for any length of time
for more than one single act of sexual intercourse, then the de-
fendant is guilty of the crime charged in the information. If you

find that the defendant did not so take the said from her

father, or did not take her for the purpose or with the intent to
practice sexual intercourse with her, as explained in these in-
structions, or if you find that said was at the time

years of age, or over, then the defendant is not guilty of the crime'
charged, and you will so find. *

§ 541. Custody from which female taken

g 541(1). California

The court instructs the jury that, within the meaning of the stat-
ute, a girl may be in the custody of a person having the legal

1 Black V. Commonwealth, 156 S. 3 state v. Baldwiu, 113 S. W. 1123.
W. 1043, 154 Ky. 144. 214 Mo. 290.

2 Smith V. Commonwealth, 127 S.
W. 790.



1023 ABDUCTION §541(3)

charge of her person, although she is absent from him with his
consent in the care of another for some proper purpose, and that
if you believe from the evidence that the complaining witness had
been temporarily committed to the care of the defendant by her
legal guardian for a proper purpose, and that he subsequently
conceived the intent to use the girl for a purpose prohibited by the
statute, and interposed his will between her and her guardian
in order to accomplish such prohibited purpose, he took her from
such guardian for that purpose.*

§ 541(2). Michigan

The court instructs the jury that the letters of guardianship did
not make B. guardian of the girl's person, but that they are prop-
erly in the case for the bearing they may have on the actual cus-
tody. The court further instructs the jury that the parent having
a right to the custody of a child may delegate the authority; that
this right is primarily in the father, but in his absence belongs to
the mother, who may if she see fit give the custody to a third
person for a longer or shorter period, resuming the control at will ;
that it was not necessary in this case that B.'s right should be of
that character that the mother would be precluded from resuming
her control ; it was enough if, while the girl lived at B.'s, the
mother had consented to his exercising the same control over her
in respect to her liberty that the mother herself could exercise for
the time being. If she had done so and had not revoked that per-
mission, then B. had that right to the custody and control which
in contemplation of law amounts to a legal charge of the girl.^

§ 541(3). Missouri

The court instructs the jury that, if you believe and find from

the evidence that was the daughter of , and that

she was under the age of years, and if you further find

that she was in the habit of working out as a domestic serv-
ant, and had so worked out a number of places during the past
year, and that when out of work she made her home with her

father, and if you further find that during the fall of she

came to the city of , to the home of her uncle, and that

her coming to was with the consent of her father, and

that she was under the control of her father while in , and

if you find that the defendant took her from her uncle's house in

to the city of , for the purpose of concubinage, or

that she went to , by reason of an agreement with the de-

4 People V. Lewis, 75 P. 1S9, 141 s People v. Carrier, 9 N. W. 487, 46

Cal. 543. Mich. 442.



§ 542 INSTEUCTIONS TO JURIES 1024

fendant, or by reason of inducements held out by the defendant,
then you should find the defendant guilty, if you believe he in-
duced her to go for the purpose of concubinage. ®

§ 542. What constitutes taking, enticement, or detention
§ 542(t). Kansas

The court instructs the jury that, in order to constitute a tak-
ing by the defendant under the law, it is not necessary that the
defendant should have used an)^ force, or have exercised any physi-
cal control over the girl in taking her away, or have been per-
sonall}^ with her at the time of her leaving, or have gone in per-
son with her. It is sufficient if he procured or caused her to go
away by any persuasion, enticement, or inducement offered, exer-
cised, or held out by him to the girl, or by furnishing her the means
or money with which to go away. It is not necessary that the
persuasion, enticement, or inducement should have been made or
ofifered, or the money or means furnished, at the time of the girl's
leaving; but if the defendant, for the purposes charged, persuaded,
or enticed, or ofifered inducements to the girl to leave her father
and mother, and furnished her means with which to go away,
and she did not go away at that time, but went away at a subse-
quent time, and such going away was caused by, and was the re-
sult of, the persuasion, enticement, or inducements offered, or
money or means furnished, by the defendant, such facts would
show a taking within the meaning of the law. '

§ 542(2). Kentucky

The court instructs the jury that if thc)^ believe from the evi-
dence beyond a reasonable doubt that the defendant laid his hands

upon or took hold of said against her will and consent,

and with the intent to have carnal knowledge of her himself, this
would be a taking and detaining in the meaning of the instruc-
tions. *

You are instructed that the application of physical force by a
man to the person of a woman with the intent, on the part of the
man, to prevent free locomotion on the part of the woman, is
a detention of such woman by such man if such application of
force is sufficient to, and does in fact, prevent to any extent the
power of free locomotion in such woman, and does to any extent

6 state V. Jones, 90 S. W, 465, 191 s Black v. Commonwealth, 15G S.

Mo. 653. W. 1043, 154 Ky. 144.

^ State V. Bussey, 50 P. 891, 58 Kan.
679.



1025 ABDUCTION § 543

prevent her from going to or being wherever she wishes to go
or to be. And, if there is such detention against the will and with-
out the consent of the woman upon whom such detention is ex-
ercised, and if such detention is willfully and intentionally exer-
cised by the man for the purpose of having sexual intercourse with
the woman against the will of the woman, and if the man be not
the husband of the woman, such detention is an unlawful deten-
tion within the meaning of the law. ^

§ 542(3). Michigan

The court instructs the jury that, before you can convict the de-
fendant, you must be satisfied beyond a reasonable doubt that he

enticed the girl, , away, such enticement, if there was any,

may have been done by open solicitation to go for one purpose or
for another purpose. It may have been done by designedly por-
traying to her her situation, and the result of going back to Mr.

, or the place from which she came, in. such a light as to lead

her to go to escape a return. If this were done with the design of
getting her to go, it is an enticing although the defendant may not
have asked her to go, and apparently only consented to go with
her ; but if he had no design to get her to go away, and did nothing
to bring about such an end, it would not be an enticing, and the
defendant could not be convicted. ^^

§ 542(4). Missouri.

In the case of State v. Corrigan, 171 S. W. 51, 262 Mo. 195, the
court adopted the instruction given in State v. Bussey, 50 Pac.
891, 58 Kan. 679. See § 542 (1).

§ 543. Character of cohabitation — What is marriage

The court instructs the jury that marriage is the civil status of
one man and one woman capable of contracting, united by contract
and mutual consent for life, for the discharge to each other and
to the community of the duties legally incumbent on those whose
association is founded on the distinction of sex. If the jury be-
lieve that the parties and did not intend to enter

into the agreement of matrimony, but simply agreed to abide to-
gether for the purpose of illicit sexual intercourse, then there was
no marriage between them. ^^

9 Robb V. Commonwealth, 101 S. W. n State v. Adams, 78 S. W. 588, 179
918, 31 Ky. Law Rep. 246. Mo. 334.

10 People V. Carrier, 9 N. W. 487,
46 Mich. 442.

Inst.to Juries— 65



§ 544 INSTRUCTIONS TO JURIES 1026

§ 544. Clandestine marriage

The court instructs the jury that the act of inducing an unmar-
ried female under the age of sixteen years to leave her honje with-
out the consent of her parents for the purpose of effecting; a mar-
riage with her is not the offense defined by the statute; on which
this indictment is based, so long as no fraud or deceit is practiced
upon her.*'

§ 545. What constitutes concubinage and duration of cohabitation
§ 545(1). Kansas

You are instructed that the word "concubinage," as used in
the information and in these instructions, means for the purpose

of living and cohabiting b}' defendant with as his wife ; but

it is not necessar}- that permanent, or even long-continued, cohabi-
tation shall have been contemplated. ^^

§ 545(2). Missouri

The jury are instructed that by the word "concubinage," as used
in the information and instructions, is meant the act or practice
of a man cohabiting in sexual intercourse with a woman to whom'
he is not married. If the jury believe from the evidence that the
defendant, , did take the witness away from her fa-
ther, and that said was at the time a female under the age

of years, for the purpose of cohabiting with her as a man

and woman in sexual intercourse for any length of time, but for
more than a single act of sexual intercourse, without the author-
ity of a marriage, it would be sufficient to constitute the offense
charged in the information. **

The court instructs the jury that if the jury believe, from the

evidence, that the defendant, at the county of , in

this state, at any time within years before finding of the

indictment, did take away from her mother, as charged in

the indictment, for the purpose of concubinage — that is, for the
purpose of having sexual intercourse with her as man and woman
for any length of time, even for a single night, without authority

of a legal marviage — and that said was at the time under

the age of , and that the mother of said did not con-
sent to the taking away of said for said purpose of con-
cubinage, then the jur}^ will find the defendant guilty, and assess

12 Hav V. State, 67 So. 107, 68 Fla. i* State v. Adams, 78 S. W. 588, 179
458. Mo. 334.

13 State V. Tucker, 84 P. 126, 72
Kan. 481.



1027 ABDUCTION § 546(4)

his imprisonnu-nt in the penitentiary for a period of not less than
nor more than years/**

§ 546. Use of force or persuasion
§ 546(1). Georgia

The court instructs the jury that, if you believe from the evi-
dence that the defendant was a married man and that he induced
the girl, , who was not his wife, to go away with him with-
out the consent of her parents under a false and fraudulent prom-
ise of marriage, and for the purpose of having sexual intercourse
with her, you will find him guilty as charged in the indictment.^®

§ 546(2). Kansas

You are instructed that the important element of the offense is

the taking away of the female from her father and Mrs.

without their consent for the illicit purpose, and that this may
have been accomplished by the persuasion, enticement, advice, or
other active influence of the defendant; and that if she was there-
by removed beyond the control of her father, , and Mrs.

, for such purpose, the oft'ense is complete, and this without

regard to whether or not she consented to go. ^'

§ 546(3). Mississippi

The court instructs the jury that, in order to convict the defend-
ant of the crime of abduction under the statute, you must believe
from the evidence that the defendant unlawfully took the com-
plaining witness against her will, and by force, menace, fraud, de-
ceit, stratagem, or duress compelled or induced her to be defiled.^*

§ 546(4). Missouri

The jury are instructed that if you find from the evidence that

at the county of and state of , at any time within

years next before the filing of the information herein, the

defendant did take away from her father, , for the

purpose of concubinage, and that the said was a female un-
der the age of years, you will find him guilty, and assess his

punishment at imprisonment in the penitentiary not less than

years nor more than years. Even should you believe

from the evidence that the said was of easy virtue, or had

previously had sexual intercourse with defendant, or had consented



15 State V. Stone, 16 S. W. 890, 106 i7 State v. Tucker. 84 P. 126, 72
Mo. 1. Kan. 481.

16 Carter v. State, 80 S. E. 206, 14 is Laiupton v. State, 11 So. 656.
Oa. App. 51.



§ 546(4) INSTRUCTIONS TO JURIES 1028

to go away with defendant, or that she consented to have sexual
intercourse with the defendant, yet none or all of these facts would
constitute any defense to this prosecution.^^

The jury are instructed that it is not necessary in this case for

the state to prove that the taking away of from her mother

was by force or violence ; and it is no defense that the said

consented to go with the defendant, or that she consented or agreed
to her sexual intercourse with defendant. ^*

§ 546(5). North Carolina

The jury are instructed that if you should believe from the evi-
dence that the girl, , was taken away by the defendant

against her father's' will and without his consent, the defendant
cannot be convicted unless the jury shall further find from the
evidence beyond a reasonable doubt that the girl was carried
away by the force or fraud, or induced to go by the persuasion
of the defendant.^^

You are instructed that if you believe from the evidence that
defendant by persuasion obtained the consent of the prosecuting
witness, , to go away with him, such consent would consti-
tute no defense to this prosecution for abducting her from her
father's house.^^

§ 547. Placing in custody by defendant

You are instructed that if you believe from the evidence that

defendant persuaded the girl, , who was not his wife, to

go to a bawdyhouse and there be a prostitute during the greater
part of every night, and that he received part of her earnings, but
you further believe from the evidence that no one exei-cised any
restraint over the girl, and that she was, and had been, a prosti-
tute for a considerable time before defendant so induced her to go
to the bawdyhouse, if he did so induce her, then you will acquit the
defendant.^^

19 State V. Adams, 78 S. W. 588, 179 ss People v. Drake, 121 P. 1006, 162
Mo. 334. Cal. 248. This prosecution was un-

20 State V. Stone, 16 S. W. 890, 106 der a statute providing that whoever
Mo. 1. receives any money on account of

21 State V. Burnett, 55 S. E. 72, 142 placing in custody any female for the
N. C. 577. purpose of causing her to cohabit

2 2 State v. Chisenhall, 11 S. E. 518, with any man not her husband is
106 N. O. 676. guUty of a felony.



1029 ABDUCTION § 549

§ 548. Effect of want of chastity of female

§ 548(1). Missouri

The court instructs the jury that, even if you believe from the

evidence that the prosecuting witness, , was of unchaste

character, and prior to the alleged abduction had had sexual inter-
course with the defendant, such state of facts will constitute no
defense to this prosecution."*

The court instructs the jury that, although you may believe
from the evidence that the general reputation of the prosecuting
witness for chastity and virtue was bad at the time of the -acts
complained of, her want of chastity constitutes no justification to
any one to take her from the custody of her father or rightful
guardian for the purpose of prostitution or concubinage ; but the
court further instructs you that evidence of the reputation of the
prosecuting witness for want of chastity is to be considered by you
in weighing her testimony and is admitted for that purpose.**^

§ 548(2). Tennessee

The jury are instructed that if you find from the evidence beyond
a reasonable doubt that the prosecuting witness, , was liv-
ing with her parents a chaste and virtuous life towards all others
except defendant, and that defendant willfully took her from said
parents without their consent for the purpose and with the intent
of prostituting her, then he would be guilty as charged, although
it may appear that prior thereto the defendant had had sexual in-
tercourse with her.^^

§ 549. Place to which abducted female taken and length of ab-
sence

The court instructs the jury that the defendant is being prose-
cuted for the violation of a statute prohibiting the enticement of an
innocent female of chaste life from the home of her parents or
legal guardian for the purpose of prostitution or concubinage, and
that it is not necessary, to constitute the prohibited offense, that
the female be taken to a place distant from the family residence,
or that she be taken any particular distance therefrom, nor is it
essential that the girl should be kept permanently away from
such residence, or that there should be any intent to so keep her.^'

2 4 State V. Baldwin, 214 Mo. 290, 2 6 South v. State, 37 S. W. 210, 97

113 S. W. 1123. Tenn. 496.

2 5 state V. Bobbst, 32 S. W. 1149, 27 Slocum v. People, 90 111. 274.

131 Mo. 328 ; State v. Johnson, 22 S.
W. 463, 115 Mo. 4S0.



§ 549 ixsTitucTioxs TO juniKS 1030

The court further instructs you that it is sufficient to constitute
a violation of such statute that a girl living with her parents is per-
suaded or enticed to go to some convenient place away from her
father's house for the purpose of prostitution, although the place
to which she goes is in the immediate neighborhood of such house,
and she is gone only for an hour or two at a time, and she con-
tinues all the while to dwell with her parents as usual."*

§ 550. Ignorance of age of complaining witness

The court instructs the jury that the fact that the child, the com-
plaining witness in this case, consented to go with defendant and
to have sexual intercourse with him, if you find that she did have
such intercourse and did so consent, is of no avail to the defend-
ant, if she was under the age of consent at the time of such acts,
although the defendant believed in good faith, or had good grounds
for believing, that she was over the age of consent. ^'^

§ 551. Presumption as to chastity of prosecuting witness

The court instructs the jury that the presumption of law is that

the life and previous character of the prosecuting witness, ,

were chaste, and that the burden of proof is upon the defendant
to produce sufficient evidence to overcome such presumption.^*



B. Civil. Liability

§ 552. Right of parent to sue

The court instructs the jury that a father can maintain an ac-
tion for the abduction of his daughter who is under twenty-one
3'ears of age. The father has such property in his infant child as
will enable him to maintain an action for injury done him, by de-
priving him of the society of his child, and defeating the educa-
tion of his child, etc. The true ground of the action, as I under-
stand the law, is not so much the loss of the services of the child,
but the outrage and deprivation, the injury the father sustains in
the loss of his child, the insult offered his feelings, the agony in



Online LibraryHenry Edward RandallA treatise on the law of instructions to juries in civil and criminal cases, with forms of instructions approved by the courts (Volume 2) → online text (page 1 of 115)