as well be admitted to testify as where the charge is by the state of a breach of the public peace."1

§ 761. Circumstances.- Aside from the testimony of the woman, the evidence in these cases is generally circumstantial. Therefore, of necessity, each case will present its special aspects, and what is admissible in one will not necessarily be so in another. Such facts as the secretion of a foetus about the building where the abortion is alleged to have taken place,2 the character of the house, the defendant's possession of instruments adapted to this sort of operation, his solicitation of the or this class of business," the woman's low health and spirits and stains on her bed-clothes," - are illustrations of what is, in connection with other facts, admissible.'

§ 761a. Dying declarations.—Where the woman dies, her dying declarations are admissible, if the indictment is for murder. But if it is for abortion, and, under the statute, it sets out her death in aggravation of the defendant's guilt, they are not admissible.10

§ 762. Burden of proof as to abortion not necessary.Under a statute which makes it an element of the offense that the abortion was not necessary, some courts hold that, though

1 S. v. Dyer, 59 Me. 303, 307. And see Com. v. Reid, 8 Phila. 385; S. v. Briggs, 9 R. I. 361, [11 Am. R. 270; S. v. Pearce, 56 Minn. 226, 57 N. W. R. 652.]

2 S. v. Howard, 32 Vt. 380, 405.

3 Hays v. S., 40 Md. 633.

4 Com. v. Blair, 126 Mass. 40.

5 Com. v. Holmes, 103 Mass. 440; Weed v. P., 56 N. Y. 628; s. c. below, 3 Thomp. & C. 50. See Watson v. S., 9 Tex. Ap. 237; [P. v. Sessions, 58 Mich. 594, 26 N. W. R. 291; P. v. Abbott, 116 Mich. 263, 74 N. W. R. 529.] 6 Com. v. Wood, 11 Gray, 85; P. v. Olmstead, 30 Mich. 431; [Com. v. Follansbee, 155 Mass. 274, 29 N. E. R. 471.]

7 And see, for further illustrations, Com. v. Brown, 14 Gray, 419; Com. v. Hersey, 2 Allen, 173; Dunn v. P., 29 N. Y. 523, [86 Am. D. 319;] Crichton v. P., 6 Park. Cr. 363; Com. v.

Brown, 121 Mass. 69; Com. v. Blair, 123 Mass. 242; Hays v. S., 40 Md. 633; S. v. Howard, 32 Vt. 380; [P. v. McGonegal, 136 N. Y. 62, 32 N. E. R. 616; Scott v. P., 141 Ill. 195, 30 N. E. R. 329; Com. v. Corkin, 136 Mass. 429; King v. S. (Tex. Cr. R.), 34 S. W. R. 282; P. v. Van Zile, 73 Hun, 534, 26 N. Y. Supp. 390; Com. v. Fenno, 134 Mass. 217.]

8 Crim. Pro., I, § 1207; Maine v. P., 9 Hun, 113; Rex v. Baker, 2 Moody & R. 53; [Montgomery v. S., 80 Ind. 338, 41 Am. R. 815; Rhodes v. S., 128 Ind. 189, 27 N. E. R. 866; Railing v. Com., 110 Pa. St. 100, 1 Atl. R. 314.] 9 Ante, § 743.

10 P. v. Davis, 56 N. Y. 95, 103; S. v. Harper, 35 Ohio St. 78, [35 Am. R. 596;] Rex v. Hutchinson, 2 B. & C. 608, note; Reg. v. Hind, Bell, C. C. 253, 8 Cox, C. C. 300.

this want of necessity must be averred in the indictment,' it need not be proved, but the burden is on the defendant to This is a sort of question on which judicial

521

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 (3d Eng. ed.),572; Archb.

[§§ 766-768. superseded by the somewhat better drawn provisions of 24 and 25 Vict., ch. 100, § 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." 1

§ 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.

3

§ 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

1 Alison, Crim. Law, 153; Brown's Case, 1 Swinton, 482.

2 Mr. Graves tells us that this statute was framed from 9 Geo. 4, ch. 31, § 14, and 10 Geo. 4, ch. 34, § 17, Irish; but was intended also to supply some defects in those statutes. Greaves, Crim. Law Acts, 84.

3 Report of Judges, 3 Binn. 595, 623.

4 Kilty, Rep. Stats. 172. This statute of 21 Jac. 1, ch. 27, was originally, by its terms, to be in force only "until the end of the first session of the next parliament; " but it was continued by 3 Car. 1, ch. 4, § 22, and 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.1 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

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

2S. v. Kirby, 57 Me. 30. Similar is the Massachusetts statute. Mass. Gen. Stats., ch. 165, § 11; formerly R. S., ch. 130, § 6. See, as to Ken

tucky, Foster v. Com., 12 Bush, 373.
As to Texas, S. v. Rupe, 41 Tex. 33.
As to South Carolina, S. v. Love, 1
Bay, 167.

3 Rex v. Douglas, 1 Moody, 480.