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District Court of Appeal, Third District, California.

June WILBORN, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR The COUNTY OF HUMBOLDT, Respondent.*

Civ. 9519.

Decided: September 10, 1958

Falk & Falk, Eureka, for petitioner. Edmund G. Brown, Atty. Gen., by Doris H. Maier, Deputy Atty. Gen., and Harold L. Hammond, Dist. Atty., Humboldt County, Eureka, for respondent.

Petitioner filed in this court a petition for a writ of prohibition to restrain the Superior Court of Humboldt County from proceeding with the trial of petitioner on a charge of violating section 278 of the Penal Code. Said section reads as follows:

‘Every person who maliciously, forcibly, or fraudulently takes or entices away any minor child with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, is punishable by imprisonment in the state prison not exceeding twenty years.’

We issued an alternative writ and the matter was heard by this court.

Petitioner contends that she was held to answer at the preliminary examination without reasonable or probable cause. At the preliminary examination the evidence showed that the parents of the child, Mr. and Mrs. James, were separated. Mrs. James had moved into her father's home with the child, a four-months-old baby girl. On the night of March 31, 1958, petitioner knocked on the door of the grandfather's house and told him that she had a flat tire and needed help. Mrs. James was not at the house. The grandfather opened the door and petitioner walked in. Becoming suspicious of petitioner because of her answers to some of his questions the grandfather started to shove her out of the door and as he did so Mr. James jumped on him, cursed him and held him down. While Mr. James was holding the grandfather down, petitioner went into another room, wrapped the baby in a blanket and went out of the front door with the baby. Mr. James followed, and petitioner, Mr. James and the baby left together in an automobile.

Sometime subsequent to the taking of the child, Mrs. James saw petitioner carrying the child into a house. Mr. James was not seen at this time but his car was seen. At the present time no one seems to know of the whereabouts of either Mr. James or the baby.

On April 1, 1958 (after the taking of the baby) Mrs. James was granted custody of the child pending annulment proceedings.

Petitioner argues that since the father, Mr. James, had an equal right to the custody of the child on March 31st, he could not have been guilty of the crime charged. Petitioner then argues that petitioner, who accompanied and aided the father, could not be guilty of the crime.

The general rule is well expressed in an annotation in 77 A.L.R. at page 317, as follows:

‘In the absence of an order or decree affecting the custody of a child, it is generally held that a parent, or one assisting such parent, does not commit the crime of kidnapping by taking exclusive possession of the child.’

And as stated in Biggs v. State, 13 Wyo. 94, 77 P. 901:

‘That a father who takes his minor child from the custody of its mother, when the custody has not been placed in the mother by the decree of a court of competent jurisdiction, is not guilty of kidnapping, is settled by law. * * * Not only is this proposition true when negatively expressed, but we think it may be positively stated that in no case, in the absence of an express provision of statute, can a parent be guilty of kidnapping his or her own minor child, unless the forcible taking is from the custody established by the decree of a competent court.’

Respondent in reply argues that the sole question in the instant proceeding is whether there was reasonable or probable cause for the magistrate to believe that a crime had been committed and that petitioner was guilty thereof. Respondent argues that petitioner is neither the father nor the mother of the child who was taken and that the question of whether or not she was an agent of the father was a matter to be developed at the trial.

After a careful study of the evidence introduced at the preliminary examination and the language of section 278 of the Penal Code, we do not believe that the record shows reasonable or probable cause for holding petitioner to answer. For the testimony leaves no room for an inference other than that the petitioner worked in concert with the father of the child; that the father, accompanied by petitioner, went to the house for the purpose of obtaining the child and that the father and petitioner left together with the child. Under section 197 of the Civil Code the father was equally entitled to the custody of the child, an in assisting in the taking of the child under the circumstances here present petitioner did not take the child from the custody of the parent having lawful charge of such child, and could not be held to have violated section 278 of the Penal Code.

We therefore conclude that there was no reasonable or probable cause for holding petitioner to answer for the offense charged and that a writ of prohibition should issue.

Let the writ issue.

SCHOTTKY, Justice.

VAN DYKE, P. J., and PEEK, J., concur.

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