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CHAPTER XLVI.

CONCEALMENT OF BIRTH OR CHILD MURDER.

$ 763. Introduction. 764–776. Law of the offense. 777–780. The procedure.

$763. How chapter divided. We shall consider, I. The law of the offense; II. The procedure.

I. THE LAW OF THE OFFENSE.

$ 764. What and why.- For the protection of bastard children from the temptation of their mothers to conceal their own shame by destroying them at a private birth, statutes have been enacted in England, Ireland, Scotland, and many of our states, making the concealment of the birth or of the death of such a child by the mother, though nothing more appears against her, a crime.

Parent statute.- The parent statute is 21 Jac. 1, ch. 27, providing “that if any woman

be delivered of any issue of her body, male or female, which, being born alive, should by the laws of this realm be a bastard; and that she endeavor privately, either by drowning or secret burying thereof, or any other way, either by herself or the procuring of others, so to conceal the death thereof as that it may not come to light whether it were born alive or not, but be concealed; in every such case the said mother so offending shall suffer death, as in case of murder; except such mother can make proof, by one witness at the least, that the child whose death was by her so intended to be concealed was born dead.” 1

$ 765. Later,- In 1803, after the union with Ireland, this statute and the Irish one were repealed by 43 Geo. 3, ch. 58, § 3. It was in 1828 followed by 9 Geo. 4, ch. 31, § 14; now

1 See, for expositions of this statute, New Crim. Pro. 297; Archb. Crim. PL 1 East, P. C. 228; 2 Hale, P. C. 288; 1 & Ev. (19th Lond. ed.) 773. Russ. Crimes (30 Eng. ed.),572; Archb.

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superseded by the somewhat better drawn provisions of 24 and 25 Vict., ch. 100, S 60.

In Scotland,- the old law was superseded by 49 Geo. 3, ch. 14, providing that if any woman "in that part of Great Britain called Scotland shall conceal her being with child during the whole period of her pregnancy, and shall not call for or make use of help or assistance in the birth, and if the child be found dead or be missing, the mother being lawfully convicted thereof shall be imprisoned for a period not exceeding two years."

§ 766. In England, at present,— by 24 and 25 Vict., ch. 100, $ 60,"if any woman shall be delivered of a child, every person who shall, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, endeavor to conceal the birth thereof, shall be guilty of a misdemeanor, etc.; provided that, if any person tried for the murder of any child shall be acquitted thereof, it shall be lawful for the jury by whose verdict such person shall be acquitted to find, in case it shall so appear in evidence that the child had recently been born, and that such person did, by some secret disposition of the dead body of such child, endeavor to conceal the birth thereof; and thereupon the court may pass such sentence as if such person had been convicted upon an indictment for the concealment of the birth.” 2

$ 767. As common law with us.- The date of the parent statute of 21 Jac. 1, ch. 27, is 1623, sufficiently early to be common law in most of our states. The Pennsylvania judges do not include it in their list;' but Kilty says it was received in Maryland, and under it there were in early times numerous convictions.

$ 768. Legislation with us.- Our American legislation appears to conform, in the main, to the early model of 21 Jac. 1, ch. 27. Thus, in Arkansas, “if any woman shall endeavor pri

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1 Alison, Crim. Law, 153; Brown's Report of Judges, 3 Binn. 595, 623. Case, 1 Swinton, 482.

4 Kilty, Rep. Stats. 172. This stat2 Mr. Graves tells us that this stat- ute of 21 Jac. 1, ch. 27, was originally, ute was framed from 9 Geo. 4, ch. 31, by its terms, to be in force only 8 14, and 10 Geo. 4, ch. 34, § 17, Irish; “ until the end of the first session of but was intended also to supply some the next parliament;” but it was defects in those statutes. Greaves, continued by 3 Car. 1, ch. 4, S 22, and Crim. Law Acts, 84.

made perpetual by 16 Car. 1, ch. 4.

vately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female, that it may not come to light, although it cannot be proved that it was murdered, every such mother shall suffer the same punishment as for manslaughter.” And it is added that this provision shall not prevent her being indicted for the murder of “such bastard child," — by construction whereof the indictment for concealment must allege the child to be a bastard. In Maine, “If any woman is willingly delivered in secret of the issue of her body, which would be a bastard if born alive, and conceals the death thereof, so that it is not known whether it was born dead or alive, and was murdered, she shall be punished,” etc.; and, by construction, she is to be acquitted if the child is shown to have been born dead. While these statutes are not identical in expression, others, present and past, vary more or less from them and from one another; requiring

$ 769. Caution as to the interpretation.— By reason of the diversities of the statutes, it is difficult to draw from the past decisions, and those in other localities than our own, safe guides for our own future causes. So that practitioners and courts are compelled to tread cautiously over this ground.

Interpretation specially strict.— It is perceived that the statute makes heavily punishable what of itself is nearly or quite innocent, simply because of its tendency toward an unproved wrong. Hence its interpretation is always specially strict; as, says East, writing of

21 Jac. 1, ch. 27.—“If,” under this statute, the woman “called for help, or confessed herself with child, she is not within the construction of the statute; and then it will lie on the prosecutor to prove that the child was born alive and murdered. Upon the same principle, evidence is always allowed of the mother's having made provision for the birth, as a circumstance to show that she did not intend to conceal it. Again, if the child be born before its time, which is to be collected from circumstances, as if it have no hair, or nails, this

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tucky, Foster v. Com., 12 Bush, 373. 2 S. v. Kirby, 57 Me. 30. Similar is As to Texas, S. v. Rupe, 41 Tex. 33. the Massachusetts statute. Mass. As to South Carolina, S. v. Love, 1 Gen. Stats., ch. 165, S 11; formerly Bay, 167. R. S., ch. 130, $ 6. See, as to Ken. 3 Rex v. Douglas, 1 Moody, 480.

1 Sullivan v. S., 36 Ark. 64.

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is presumptive evidence that it was born dead; but it must be left to the jury upon all the circumstances of the case. At all events, if there be no concealment proved, the case stands as at common law; and the woman is not put to the absolute necessity of proving that the child was born dead. And even the presence of an accomplice has been held to take the case out of the statute."1 Hence,

$ 770. What is a concealment? - This is a leading question under our various enactments. Now,

Birth or death.- Some of them make the offense consist in concealing the “death,” others the “birth,” of the child; the idea being that it is a badge of murder.

Person present.— If there is any person present when a child is born and dies, there is no concealment by the mother, though such person is an accomplice.?

8 771. “By secret burying,” etc.—(Statutory method).Where the statute specifies the method of concealment,- as, under 9 Geo. 4, ch. 31, $ 14,“ by secret burying or otherwise disposing of the dead body” (words which have caused “many questions "), :— the effect of the particular expression should be regarded. It was not necessary, under this statute, that the body should have been put in what was meant to be its final restingplace; as, for example, it was sufficient where the woman hid it under the bolster on which she laid her head. There must be some act of disposal;' a mere denial is not enough. Therefore, if the woman goes to a privy for another purpose, and unawares the child there passes from her into the night-soil and is suffocated, she does not commit the statutory offense, though she denies the birth.? And it is the same, as to the complete substantive offense, where she is detected with the body in her possession, about to dispose of it. Where a girl

11 East, P. C. 228. See post, 771. 5 Foster v. Com., 12 Bush, 373.

2 Ante, $ 769; Rex v. Peat, 1 East, 6 Reg. v. Turner, 8 Car. & P. 755. P. C. 229. But see, under other stat- ? Reg. v. Turner, 8 Car. & P. 755; utes, Rex v. Cornwall, Russ. & Ry. Reg. v. Coxhead, 1 Car. & K. 623. See 336; Rex v. Douglas, 1 Moody, 480. Rex v. Cornwall, Russ. & Ry. 336;

3 Greaves, Crim. Law Acts, 84. [S. v. Ihrig, 106 Mo. 267, 17 S. W. R.

* Reg. v. Perry, Dears. 471, 473, 6 300.] Cox, C. C. 531; Reg. v. Goldthorpe, 2 Rex v. Snell, 2 Moody & R. 44. Moody, 244, Car. & M. 335; Reg. v. See Reg. v. Goode, 6 Cox, C. C. 318. Farnham, 1 Cox, C. C. 349. And see Boyles v. Com., 2 S. & R. 40.

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puts away her dead child, not from the motive of concealment, but through fear of provoking her father, and otherwise she would have caused it to be buried in the churchyard, she does not commit this offense. Nor does she commit this offense though there is a concealment, if it is by some other person, without her privity or consent.?

$ 772. “ Child.” – It has been deemed that the contents of the womb, to be a "child” within these statutes, must have grown so far beyond the embryo state as, in the natural course of things, to have some chance of being born alive, or living after birth. Within which rule“no specific limit,” said Erle, J.,

can be assigned to the period when the chance of life begins; but it may, perhaps, be safely assumed that under seven months the great probability is that the child would not be born alive." : Martin, B., refused to yield to this doctrine, “stating that he saw nothing to limit the word "child' in the statute to a child likely to live or likely to die, but that as soon as the fætus had the outward appearance of a child (in this case it was about the length of a man's finger] it was sufficient.”" As this stat ute is to be construed with great strictness, and popularly a “child" is the offspring after birth and a “fætus" is the same before, it does not seem reasonable so to extend the former word by interpretation as to include within its meaning what is popularly within the meaning of the latter alone; and by no possibility can, on being expelled from the womb, become a child, but only a dead lump.8

$ 773. Our own statutes,- it is seen, conform more nearly to these earlier English statutes than to the present one. Yet it will be helpful to see something on the latter; namely,

24 and 25 Vict. There have been a few cases on 24 and 25 Vict., ch. 100, $ 60, before quoted. The endeavor to conceal

1 So the doctrine was laid down by earlier English statutes see Reg. v. Coltman, J., to a jury. Reg. v. Mor. Bird, 2 Car. & K. 817; Rex v. Snell, ris, 2 Cox, C. C. 489.

2 Moody & R. 44; Reg. v. Ash, 2 2 Rex v. Higley, 4 Car. & P. 366; Moody & R. 294; Reg. v. Jones, 2 Reg. v. Bate, 11 Cox, C. C. 686. Moody & R. 295, note; Reg. v. Bell,

3 Reg. v. Berriman, 6 Cox, C. C. 388, 2 Moody & R. 294, note; Reg. v. Hal390. And see Reg. v. Hewitt, 4 Fost. ton, 2 Moody & R. 295, note; Rex v. & F. 1101.

Watkins, 1 Russ. Crimes (3d Eng. 4 Reg. v. Colmer, 9 Cox, C. C. 506 ed.), 574. And see Com. v. Clark, 2 5 Ante, $ 769.

Ashm. 105. 6 For further authorities on the ? Ante, S 766.

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