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Effect of a total omission of venue.] In an indictment for a misdemeanor, a count containing no statement of venue, either by reference or otherwise, is bad at common [ *260] law after verdict, though a venue *be stated as usual in the margin of the indictment. And such defect is not aided by the 7 Geo. 4, c. 64, s. 20, because it does not appear by the indictment that the court had jurisdiction over the offence. For the word "jurisdiction" there means local jurisdiction, and not jurisdiction with reference to the nature of the charge. And the statement of venue in the margin implies only that the indictment is found by a grand jury of the county named, not (as in civil cases) that the complaint is laid as arising within the county. R. v. O'Connor, 5 Q. B. 16.

Change of venue.] As already mentioned, ante, p. 241, where a fair and impartial trial cannot be had in the county where the venue is laid, the court of King's Bench (the indictment being removed thither by certiorari) will upon an affidavit stating that fact, permit a suggestion to be entered on the record, so that the trial may be had in an adjacent county. Good ground must be stated in the affidavit, for the belief that a fair trial cannot be had. Clendon's case, 2 Str. 911; Harris's case, 3 Burr. 1330; 1 W. Bl. 378; Archb. C. L. 26, 4th ed. The suggestion need not state the facts from which the inference is drawn, that a fair trial cannot be had. Hunt's case, 3 B. & A. 444." This suggestion when entered, is not traversable. 1 Chitty Crim. Law, 201. And the venue in the indictment remains the same, the place of trial alone being changed. Ibid.

It is only, however, in case of misdemeanor, that the court of King's Bench will, in general, award a venire to try in a foreign county, though cases may occur in which the court would change the venue in felony. Holden's case, 5 B. & Ad. 347;° 2 Nev. & M. 167. And even in cases of misdemeanor, the court has not exercised its discretionary power, unless there has been some peculiar reason, which made the case almost one of necessity. Ib.

Upon an indictment for a misdemeanor, the application to change the venue ought not to be made before issue joined. Forbes's case, 2 Dowl. P. C. 440.

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Proof of the taking of the girl out of the possession of the father, &c.
Proof of the want of consent of the father, &c.

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At common law.] It is stated to be the better opinion, that if a man marry a woman under age, without the consent of her father or guardian, that act is not indictable at common law; but if children be taken from their parents or guardians, or others intrusted with the care of them, by any sinister means, either by violence, deceit, conspiracy, or any corrupt or improper practices, (as by intoxication) for the purpose of marrying them, though the parties themselves may be consenting to the marriage, such criminal means will render the act an offence at common law. 1 East, P. C. 458, 459; 1 Russ. by Grea. 701; 3 Chit. Crim. 713. So seduction may take place under such circumstances of combination and conspiracy, as to render it an indictable offence. Lord Grey's case, 3 St. Tr. 519; 1 East, P. C. 460; 1 Russ. by Grea. 701.

By statute.] The offence of abduction was provided against by the 3 Hen. 7, c. 2, 39 Eliz. c. 9, 4 & 5 P. & M. c. 8, and 1 Geo. 4, c. 115; but those statutes were repealed, and their provisions consolidated by the 9 Geo. 4, c. 31.

The 19th section of that statute enacts, that "where any woman shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate; or shall be an heiress presumptive, or next of kin to any one having such interest, if any person shall from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or cause her to be married or defiled by any other person; every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years.

The Irish statute, 10 Geo. 4, c. 34, s. 22, enacts, that if any person *shall [ *262] by force, take away any woman or girl against her consent, with intent that such person or any other person shall marry or defile her, every such offender, and every accessary thereto before the fact, shall be guilty of felony, and suffer death as a felon, and every accessary thereto after the fact shall be guilty of felony, and be liable to be transported for life or for not less than seven years, or to be imprisoned with or without hard labour for any term not exceeding three years. The 5 & 6 Vict. c. 28, s. 15, after reciting the above section, enacts, that any person convicted of the said offence shall not suffer death, or have sentence of

death awarded against him, but shall be transported for life, or for any term not less than seven years, or be imprisoned for any term not exceeding four years. By s. 19, such imprisonment may, according to the discretion of the court, be with or without hard labour and solitary confinement, such solitary confinement not exceeding one month at one time, nor three months in a year. By s. 18, a principal in the second degree, or accessary before the fact, is punishable as an accessary in the first degree.

Upon an indictment under the above statute of the 9 Geo. 4, c. 81, s. 19, the prosecutor must prove-1, The taking away or detaining of the woman against her will.-2, That the woman had such an interest as is specified in the statute. -3, That the taking away or detaining, was from motives of lucre.-4, The intent to marry or defile.

If the prisoner be acquitted of the felony, it has been held that he may be convicted of an assault under the 1 Vict. c. 85, s. 11, if he used force to the person of the female in taking her away. See Barratt's case, 9 C. & P. 387. But see contra, Hughes's case, tit. Rape.

Proof of the taking away or detaining against the will, &c.] The 3 Hen. 7, c. 2, like the 9 Geo. 4, uses the words, "take against her will," and upon those words, it has been held, that getting a woman inveigled out by confederates, and detaining her, and taking her away, is a taking within the statute of Hen. 7. Thus, where a confederate of the prisoner inveigled a girl of fourteen, having a portion of 5,0007., to go with her and a maid-servant in a coach into the Park, where the prisoner got into the coach, and the two women got out, and the prisoner detained the girl while the coach took them to his lodings in the Strand; where, the next morning, he prevailed upon her, by threatening to carry her beyond the seas, in case she refused to marry him, (though there was no evidence that she was deflowered) the prisoner was convicted and executed. Brown's case, 1 Ventr. 243; 1 Russ. by Grea. 703. So it is said, that it is no manner of excuse that the woman at first was taken away with her own consent, because, if she afterwards refuses to continue with the offender, and be forced against her will, she may, from that time, as properly be said to be taken against her will, as if she had never given any consent at all; for till the force was put upon her, she was in her own power. Hawk. P. C. b. 1, c. 41, s. 7; 1 East, P. C. 454. This would probably be now considered, as a "detaining" within the 9 Geo. 4, c. 31. See also Wakefield's case, Murray's ed.

Proof of the woman's interest.] The prosecutor must prove that the woman was interested in real or personal estate, according to the allegation in the indictment, or that she was the heiress or next of kin to some one having such interest. [*263] Evidence of this fact must be given in the usual way, and the possession of real or personal estate will be primâ facie evidence of interest. prove that the party is heiress, or next of kin, one of the family, or some one acquainted with the family, may be called.

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Proof that the offence was committed from motives of lucre.] That the party was guilty of the offence from motives of lucre, will in general, be gathered from the whole circumstances of the case. Proof that there was little or no previous intercourse between the parties, will tend to establish this part of the case. So, that the offender was in needy circumstances, or that he has made declarations

Eng. Com. Law Reps. xxxviii. 167.

tending to show the object with which he committed the crime. Thus in Lockart Gordon's case, 1 Russ. by Grea. 707, it was proved that the prisoner was pressed for money, and backward in his payments; and that he had admitted to one of the witnesses that he was in distressed circumstances. See Wakefield's case, 2 Lew. C. C. 279; also Barratt's case, 9 C. & P. 387, where Parke, B., said to the jury, "I agree with the learned counsel for the prisoner, that there is a great distinction between this case and the case of R. v. Wakefield, as there was not in that case any previous intimacy between the parties. I also agree with him as to his argument, that if all the other requisites of the statute constituting the offence are satisfied, and the evidence of the motive being the base and sordid one of lucre, is unsatisfactory or insufficient, it will be your duty to acquit the prisoner of the charge of felony. * ** With respect to the motives of the prisoner, evidence has been given of expressions used by the prisoner respecting the property of Miss Ellis, such as his having told one of the witnesses that he had seen Mr. Whitwell's will, and that she would be entitled to 2007. a year. These expressions are important for you to consider, in order to your forming a judgment whether the prisoner was actuated by motives of lucre or not.

Proof of the intent to marry or defile.] Under the 3 Hen. 7, it was necessary that there should be a marriage or defilement, the taking alone not being sufficient; And. 115; Cro. Car, 486; 1 Russ. by Grea. 703; and it was not necessary to aver an intent to marry or defile; Fulwood's case, Cro. Car. 482; nor was it material whether the woman was at last married or defiled with or without her consent, if she were under force at the time of the taking, for such construction was equally within the words and meaning of the statute, (3 Hen. 7,) which was to protect the weaker sex from both force and fraud. Upon an indictment under the 9 Geo. 4, c. 31, however, it is not necessary to prove either a marriage or defiling, but only an intent to marry or defile, which, like the averment of "motives of lucre," will in general appear from the whole circumstances of the case. In an indictment under the 9 Geo. 4, c. 31, however, an allegation as to the intent will be necessary. 1 Russ. by Grea. 709.

Venue.] Under the 3 Hen. 7, it was held, that where a woman was taken away forcibly, in one county, and afterwards went voluntarily into another county, and was there married or defiled with her own consent, the offender was not indictable in either county, on the ground that the offence was not complete in either. Gordon's case, 1 Russ. by Grea. 704. This point cannot, however, arise upon the 9 Geo. 4, c. 31, *the offence under that statute being complete, by [*264] the taking or detaining, with intent, &c. And moreover by the 7 Geo. 4, c. 64, s. 12, an offence begun in one county, and completed in another, may be tried in either county.

Abduction of girls under sixteen.] The offence of taking away a maid or woman child unmarried, under the age of sixteen, from the custody of her father, &c., was formerly provided for by the 4 & 5 P. & M. c. 8, s. 2 and 3 (now repealed) and was likewise, as it seems, an offence at common law. Hawk. P. C. b. 1, c. 41, s. 8. And the 9 Geo. 4, c. 31, s. 20, enacts, "that if any person shall unlawfully take, or cause to be taken, any unmarried girl, being under the age of sixteen years, out of the possession, and against the will of her father and mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty

Eng. Com. Law Reps. xxxviii. 167.

of a misdemeanor, and being convicted thereof, shall be liable to suffer such punishment by fine or imprisonment, or by both, as the court shall award."

Upon an indictment for this offence, the prosecutor must prove-1, the taking of the girl (and that she is under sixteen) out of the possession of her father, &c.; 2, that it was against the will of the father, &c. It will be observed that neither motives of lucre, nor an intent to marry or defile, are made constituent parts of this offence, as in the preceding section of the act.

Proof of the taking of the girl out of the possession of the father, &c.] It has been held that an illegitimate child is within the protection of the 4 & 5 P. & M. Cornforth's case, 2 St. 1162; Hawk. P. C. b. 1, c. 41, s. 14. And the same would be held under the new statute. The taking away may be effected either by force or fraud, or by obtaining the consent of the girl herself to leave her father, &c. Thus it is said by Herbert, C. J., that the statute (of P. & M.) was made to prevent children from being seduced from their parents or guardians by flattering or enticing words, promises, or gifts, and married in a secret way to their disparagement. Hicks v. Gore, 3 Mod. 84. So it is no excuse that the defendant being related to the girl's father, and frequently invited to the house, made use of no other seduction than the common blandishments of a lover, to induce the girl secretly to elope and marry him, if it appear that it was against the consent of the father. Twisleton's case, 1 Lev. 257; 1 Sid. 387; 2 Keb. 432; Hawk. P. C. b. 1, c. 41, s. 10; 1 Russ. by Grea. 712.

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It would seem according to the opinion of Gurney, B., that where a man by false and fraudulent representations, as by representing that he wished to place her in the service of a lady, induced the parents of a girl, between ten and eleven years of age, to allow him to take her away, such taking away was an abduction within the meaning of the statute. The learned judge intended to have reserved the case for the consideration of the judges, but the prisoner being convicted on another indictment, prevented the necessity of his doing so. R. v. Hopkins, Carr. & M. 254. But where a girl under 16, who was in service, was asked by B., as she was returning from an errand, if she would go to London, as B.'s mother wanted a servant, and would give her 57. wages, and A. and B. went away together to Bilston, where they were found, and B. was apprehended; it was held that this was not such a taking as to constitute an offence under the above section. [*265] *R. v. Meadows, 1 C. & K. 399. There Parke, B., after consulting with Coleridge, J., said, “I am inclined to think that to bring a case within the twentieth section, there must be an actual taking, or a causing to be taken away; and a mere decoying or enticing away, which would be an offence within the meaning of the twenty-first section, would not constitute one under the twentieth section." A. went in the night to the house of B. and placed a ladder against the window, and held it for F. the daughter of B. to descend, which she did, and then eloped with A. F. was a girl under sixteen, viz. fifteen years old. This was held to be a "taking" of F., out of the possession of her father, within the statute, although F. had herself proposed to A. to bring the ladder, and elope with him. It was held also that it was no defence for A. that he did not know that F. was under sixteen, or that from her appearance he might have thought she was of a greater age. R. v. Robins, 1 C. & K. 456.

Proof of the want of consent of the father, &c.] The prosecutor must prove the want of consent of the father or mother, or other person having the lawful

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