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JUDGE BENEDICT. Gentlemen of the Jury: It is difficult, I think, for any thoughtful person to take part in the decision of a criminal case, without a sense of responsibility. The interest of the community in the proper enforcement of the criminal laws is such—the misfortune is so great when an effort to bring an offender to justice miscarries—the misfortune is so great when one innocent is adjudged guilty, that the responsibility attaching to the Judge and to the jury, also, in cases of this description, seldom fails to make itself felt. It cannot fail to be felt in a case like the present, where the prosecution is under a statute now, for the first time, so far as I know, sought to be enforced. The language of the statute is as follows:
“Whoever shall, knowingly and wilfully, bring into the United States, or the territories thereof, any person inveigled or forcibly kidnapped in any other country, with intent to hold such person so inveigled or kidnapped in confinement, or to any involuntary service
shall be deemed guilty of a felony, and, on conviction thereof, be imprisoned for a term not exceeding five years, and pay a fine not exceeding five thousand dollars."
The accused is charged with a violation of this statute, in regard to the three children who have given testimony before you. The charge against the accused is not that he, in Italy, inveigled these children, nor is it that he has held these children in confinement, or to an involuntary service in this country. Such acts have not been made offenses by any statute of the United States. The act which the statute makes an offense, is an act done in this country, namely, the act of bringing into the United States a person inveigled in another country, with intent to hold the person so brought in confinement, or to any involuntary service; and the charge against the accused is, that he did this act, namely, that he brought these children into the United States, knowing that they had been inveigled in Italy, with the intent to hold them in confinement, or to involuntary service, as beggars and musicians. You are called on, therefore, to inquire first whether the accused did bring these three children, or any of them, into the United States.
If you find it proved that these children landed from a vessel that brought them to this city from a foreign port in custody of the accused; that the accused had selected the mode of conveying them, and directed the movements of the children in coming here, you may find that the children were brought into the United States by the accused.
If you find that the accused brought the children into the United States, your next inquiry will naturally be, whether these children, or any of them, had been inveigled in Italy. There is no evidence that would warrant you in finding that these children had been kidnapped in Italy, and your inquiry at this point, therefore, be confined to the question of inveiglement.
The testimony bearing upon this question is so nearly alike in regard to each of the children, that it will be unnecessary for me to distinguish between the cases, leaving you to consider the evidence in regard to each child, and to notice any differences that may have been disclosed by the testimony. The testimony that has been given in your presence, the truth of which has been admitted to you in behalf of the accused, is to the effect that a bargain was made in Italy between the accused and the parents of the children respectively, by the terms of which the accused was in each case to pay the parent a certain sum of money, in one case less than ten dollars, I think, and, in consideration, thereof, the child was to be delivered to the accused, to be taken by him to this country for the purpose of being here employed for the benefit of the accused-in one case as musician in Chicago, in another to play the violin in Chicago, and in the other to be taught music in Chicago, and from Chicago to be taken further. To this arrangement the consent of the child was in each case obtained, and, in one of the cases, after representations by the aocused to the child, in regard to the beautiful things of America.
In pursuance of this arrangement, made in Italy, the child was taken to Naples—in one case by an uncle—and from Naples sent to Marseilles. There these three children, with four others, were taken in charge by the accused, and thereafter came with him to this city. One of the children is eleven, another thirteen, and another eleven years of age.
In connection with the evidence in respect to the arrangement made in Italy, it will be important for you to consider • the law of Italy relating to the employment of children in wandering professions. But it must be remembered that the accused is not on trial for violating the law of Italy, and cannot be found guilty by you because of any violation of the law of Italy that you may believe to have been disclosed by the evidence. He must be found guilty, if at all, for a violation of the laws of the United States, that you have heard read. The law of Italy has been admitted in evidence as bearing upon the question of inveiglement, and solely for the purpose of showing the character of the act to which the consent of these children was obtained in Italy.
The law of Italy provides as follows:
Section 1. Any person who shall entrust, or under whatever pretence, shall commit to natives or strangers, other persons of either sex under the age of eighteen years, though his or her own children or pupils; and any native or stranger who shall receive them, with the intent to employ them in the kingdom, in whatever manner, or under whatever denomination, in the practice of wandering professions, as saltinbanks, witches, charlatans, errant players or singers, rope dancers, guessers, fortune tellers, animal exposers, beggars, and similar wanderers, shall be punished with the imprisonment from one to three months, and fined from fifty-one to two hundred and fifty lire, etc. Section 3. Any one who shall trust or deliver in the kingdom, or take abroad in order to trust or deliver to natives or strangers abroad, persons under eighteen years of age, though his or her own children or pupils, and any native or stranger who shall receive such persons, in order to take, trust or deliver them abroad, for the purpose to employ them, in whatever way and under whatever denomination, in the practice of wandering professions, as shown in Section 1, shall be punished with imprisonment from six months to one year, and fined from one hundred to five hundred lire.
You will observe that the arrangement to which the assent of these children was secured in Italy was unlawful, provided the children were to be employed in a wandering profession, such as errant-players, or beggars, or similar wanderers. It has been contended here, that these children were not intended to be employed as wanderers in violation of the law of Italy because the evidence is that they were to be employed to play the harp or be musicians in Chicago. But, gentlemen, a child of eleven or thirteen years of age may be a wanderer in the streets of a great city, and if, upon considering the evidence and what has been proved in regard to the character of the arrangement made in Italy, and the age of the children, and their ability to earn money for the accused by labor, you conclude that the arrangement made in Italy in regard to these children, or either of them, contemplated the delivery of these children to the accused to be by him brought to this country for the purpose of being employed as beggars or street musicians in Chicago, and that the child was then and there entitled to consent to such an arrangement, then you will be justified in finding that such child had been inveigled in Italy.
The statute of the United States contains the word "knowingly," and renders it necessary in order to convict the accused, that you should find that he brought the children to this country knowing at the time that they had been inveigled in Italy. The evidence in regard to his knowledge, in regard to any inveiglement of the children, is to be found in the testimony respecting the part he took in making the bargain with the parents and the obtaining of the consent of the child.
The next subject of inquiry is important, for it relates to the intent. In order to a conviction, it must be proved not only that the child had been inveigled in Italy to come to this country in charge of the accused and was brought here by the accused with knowledge of what had transpired in Italy, but it must also be proved that the accused brought the child here with the intent to hold the child when so brought, in confinement or to involuntary service, as a beggar or as a musician. This intent is a necessary ingredient of the offense, and must be proved as laid.
The children were taken from the accused immediately upon landing from the steamer, and it is perhaps best to consider the evidence as insufficient to justify finding an intention to hold the children in confinement; the question rather is, did he intend to hold them to involuntary service as beggars or as musicians. Upon this question the age of the child is important, for, as you know, in regard to some things, a child of such tender years is incapable of consent. The nature of the employment to which the accused intended to put the child, the evidence in regard to the arrangement made in Italy, and the ability of the child to labor or play an instrument, are important circumstances in the connection also, for if you believe from the evidence that the intention of the accused in bringing the child to this country was to employ the child as a beggar or as a street musician for his own profit, and that such employment was one injurious to its morals and inconsistent with its proper care and education, according to its condition, then you will be justified in finding that he intended to hold such child to involuntary service as charged in the indictment, and this notwithstanding the fact that the child had consented to the employment in Italy, and that no evidence of a subsequent dissent while under the control of the accused has been given.
I have now, gentlemen, called your attention to the question of fact which you are called on to determine.
The case is considered by the Government to be important, and such it is; but it is to be determined upon its own facts as they have been proved by evidence, and not upon any general notion in regard to the necessity of punishing padroni, and putting an end to traffic in children.
The accused is entitled to have his case determined upon its own facts, and without any prejudice against him by reason of any supposition on your part as to what others may have done.
It is a criminal case, and the accused is entitled to the benefit of any reasonable doubt in regard to the existence of any of the facts that have been pointed out as material. You