sitting in the privy the child came from her involuntarily, and dropped into the vault below; and that as it made no stir or outcry, she supposed it was dead, and consequently told no one of its birth. Held, that prisoner was not guilty of concealing her pregnancy and the birth of her child, nor guilty of concealing its death.

For the State, Mercer Beasley, Jr. For the defendant, John F. Hageman, Sr.

Opinion by STEWART, P. J.

The defendant, having waived a jury, was tried before the court on two allegations, one for having concealed her pregnancy and the birth of her child, and the other for having concealed the death of her child, under section 83 of the crimes act,1 as follows:

"Whereas, many lewd and dissolute women, being pregnant with bastard children, but regardless of natural affection, or to avoid shame or escape punishment, conceal their pregnancy and the birth of such children, whereby many of them perish for want of the usual and necessary aid and assistance, and also conceal the death of such children, so that it can not be known whether they were murdered or not, therefore, if any woman shall conceal her pregnancy and shall willingly and of purpose be delivered in secret by herself of any issue of her body, male or female, which shall by law be a bastard, every such woman so offending shall be adjudged to be guilty or a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding one hundred dollars, or by imprisonment at hard labor not exceeding four months, or both; and if any woman shall endeavor privately, by drowning or secret burying, or in any other way, either by herself or the procurement of others, to conceal the death of any such issue of her body, which, if it were born alive, would by law be a bastard, so that it may not come to light whether it was born alive or not, or whether it were murdered or not, then in every such case the woman so offending, her aiders, abettors, counselors and procurers shall be adjudged to be guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding two hundred dollars, or by imprisonment at hard labor, not exceeding one year, or both, at the discretion of the court before whom such conviction shall be had."

The statute is copied verbatim trom Paton,2 passed in 1796.
This section is taken from 21 Jacob I.3

"Whereas, many lewd women that have been delivered of bastard children, to avoid their shame and escape punishment, do secretly bury or conceal the death of their children, and after, if the child be found dead, the said women do allege that the said child was born dead, whereas, it falleth out sometimes (although hardly it is to be proved)

that the said child or children were murthered by the said women their lewd mothers, or by their assent or procurement. For the preventing thereof of this great mischief, be it enacted by the authority of this present Parliament, that if any woman, after one month next ensuing the end of this session of Parliament, 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 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 was born alive or not, but be concealed; in every such case the said mother so offending shall suffer death as in case of murther, 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, (2) and this act to continue until the end of the first session of the next Parliament.” 1

This act was modified by 43 George III.2

"And whereas, doubts have been entertainea respecting the true sense and meaning of a certain act of Parliament, made in England in the twenty-first year of the reign of his late Majesty, King James I., entitled an act to prevent the destroying and murthering of bastard children, and of a certain other act of Parliament, made in Ireland in the sixth year of the reign of her late Majesty, Queen Anne, also intituled, an act to prevent the destroying and murthering of bastard children; and the same have been found in sundry cases, difficult and inconvenient to be put in practice; for remedy whereof, be it enacted by the authority aforesaid, that from and after the first day of July, in the year of our Lord one thousand eight hundred and three, the said two several acts, and everything therein contained shall be, and the same are hereby repealed, and that from and after the said first day of July, in the said year of our Lord one thousand eight hundred and three, the trials in England and Ireland, respectively, of women charged with the murder, of any issue of their bodies, male or female, which being born alive would by law be bastards, shall proceed and be governed by such and the like rules of evidence and the presumptions as are by law used and allowed to take place in respect to other trials for murder, and as if the said two several acts had never been made.

Provided always, and be it enacted, that it shall and may be lawful for the jury by whose verdict any prisoner charged with such murder as aforesaid shall be acquitted, to find, in case it shall appear in evidence that the prisoner was delivered of issue of her body, male or

13 Car. I., ch. 14, continued until the end of the first session of the next Parliament and further continued by 16 Car. I., ch. 4.

sch. 58, secs. 3, 4.

female, which if were born alive would have been bastard, and that she did, by secret burying or otherwise, endeavor to conceal the birth thereof, and thereupon it shall be lawful for the court before which such prisoner shall have been tried, to adjudge that such prisoner shall be committed in common gaol or house of correction for any time not exceeding two years.'

This act was further changed by 9 George IV.1

"That if any woman shall be delivered of a child, and shall, by secret burying, or otherwise disposing of the dead body of the said child endeavor to conceal the birth thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or without hard labor, in the common gaol or house of correction, for any term not exceeding two years, and it shall not be necessary to prove whether the child died before, at, or after its birth; provided always, that if any woman tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury by whose verdict she shall be acquitted, to find, in case it shall so appear in evidence that she was delivered of a child, and that she did, by secret burying or otherwise disposing of the dead body of such child, endeavor to conceal the birth thereof, and thereupon the court may pass such sentence as if she had been convicted upon on indictment for the concealment of the birth."

This act was again altered by 24 and 25 Victoria.2

22

The facts, as proved on the trial, were that the defendant was a servant, and was pregnant of a child, "which if it were born alive, would, by law, be a bastard; that she had informed her mother and her paramour of her pregnancy, and her mother had made preparations to take the defendant to her own home to be confined; that when the child was about eight months old-on September 12th, 1882 the defendant had been engaged in washing, in the ordinary course of her employment, and feeling the preliminary pains of labor (she had once before been delivered of a bastard), informed her mistress that she felt pain, and was unable to go on with her work, but she did not tell her mistress the cause of her pain, and being very corpulent, her condition was not readily perceptible. Her mistress gave defendant some stimulant, and she rested on her bed that afternoon. About three o'clock, she went out to the privy, a short distance from the house, to answer a call of nature, and returned to her room, where she remained in her bed until about half past six, when she was called again to the privy, by nature. While there upon the seat, the pangs of labor became so violent, and she was so weak, that she was unable to rise,

1 ch. 31, sec. 14.

2 ch. 100, sec. 60.

and was delivered of the child, which dropped down into the privy. After about half an hour, she returned to the house, and without informing anybody of what had occurred, stated that she felt worse, and was sent in a carriage to her mother's house. She says that she had not felt the child move for several days prior to her delivery, and, supposing it was dead, said nothing about it. The child was discovered about six weeks thereafter, but was found, on a post mortem examination, to be so far decomposed that it was impossible to ascertain whether it had ever breathed or not. The written examination of the defendant was taken at the coroner's inquest, and substantially agreed with her testimony at the trial. She admitted, at the inquest, the facts as herein before recited.

The statute of 21 Jacob I.,1 which made the concealment of the birth of a bastard child by the mother, evidence that she had murdered it, has been severely reprobated by Starkie and other text-writers, as "abominable and sanguinary," and also by humane judges. And it was modified in this respect by 43 George III.3

2

The principal parts of these English statutes have been re-enacted in most of the United States, with some inconsiderable variations in the verbiage, and the New Jeresy statute was obviously drawn therefrom. To sustain the first allegation, there must be positive proof, not only of the concealment of the pregnancy and probable evidence of the birth of the issue alive,5 but also that the defendant "willingly and of purpose was delivered in secret by herself."

Where there are two or more constitutent parts of an offense, they must all be esablished. If the family of the defendant was aware of her pregnancy, it seems there can be no conviction. But it is a ques

tion for the jury.8

As the proof in this case does not sustain the conjunctive requirements of the statute, the defendant should be acquitted on this charge. As to the second allegation, that the defendant concealed the death of her issue, if there was any evidence that the child was still-born, it has been held that the offense was not committed.9 And the indictment must aver the concealment of the death of the child.10 Although it is

.1 ch. 27.

* Wash's Case, 16 Gratt. (Va.) 540; State #. McKee, Add. (Pa.) 2; State v. Jeffreys, 3 Murph. (N. C.) L. 480. See Commonwealth r. Williams. 6 Gray (Mass.), 12; State, v. Watts, 10 Ired. (N. C.) L. 373.

ach. 58. See People v. Smith, 1 Wheel. Cr. Cas. 134, note.

4 Pat., p. 210, sec. 12.

State v. McKee. Add. (Pa.) 1; State v.

Kirby, 57 Me. 30; State v. Love, 1 Bay (S. C.), 167; Rex v. Higley, 4 C. & P. 366; Reg. v. Berriman, 9 Cox, C. C. 388.

State v. Drake, 1 Vr. (N. J.) 422.

7 Rex v. Murphy, 5 Ir. L. Rec. (N. s.) 98. Reg. v. Fennell, 1 Cr. & Dix, 301.

⚫ State v. Love, 1 Bay (S. C.), 167; Com. v. Clark, 2 Ashm. (Pa.) 105; State v. Joiner, 4 Hawks (N. C.), 350.

10 Douglass v. Com.,8 Watts (Pa.), 535.

unnecessary to set out by what means or by what acts the mother endeavored to conceal the death of the infant.1

There must be evidence of an intent to conceal the death of the child, and if that be shown the mother is guilty, although she may have previously allowed the birth to be known to some persons.2

The endeavor to conceal the death must be made secretly or privately.3

When the body of a child is found lying on the soil, immediately under the seat of a privy, it is a question of fact whether it was thrown there for the purpose of concealment, or whether it came from the mother unawares when she was there for another purpose; and if the latter, the mother should be acquitted.4

The statute 9 George IV.,5 provides that "if any woman shall be delivered of a child, and shall, by secret burying or otherwise disposing of the dead body of the said child, endeavor to conceal the birth thereof," etc., she shall be deemed guilty. A child was found lying dead in a privy, and the evidence showed that the mother had gone to the privy for another purpose; thatthe child came from her involuntarily and fell into the soil and was suffocated. Held, that she must be acquitted, notwithstanding the fact that she, when accused, had denied the child's birth.6

It has been held that there must be some act done or attempted to be done endeavoring to dispose of the body after the death."

Ordinarily, mere silence is not concealment, "it must be an arrangement or contrivance to prevent subsequent discovery, and must be of an affirmative character."8

These cases control the construction of our own statute, and it is enough to say that there is not sufficient evidence to satisfy the court that the defendant "endeavored privately, by drowning or secret burying, or in any other way, either by herself or by the procurement of others, to conceal the death of such issue of her body," to justify her conviction of the offense charged. She must therefore be acquitted on the second allegation.

1 Boyles v. Com., 2 Serg. & R. (Pa.) 40 See Reg. v. Hounsell, 2 Moo. & R. 292; Reg. v. McKenna, 1 Cr. & Dix, 399; Nichols v. State, 35 Wis. 308; Sullivan v. State, 36 Ark. 64.

2 Rex v. Douglass, 1 Moo. 480; Reg. v. Clarke, 4 F. & F. 1040; Rex v. Cornwall, Russ. & Ry. C. C. 337. See Com. v. Brown, Vaux's (Pa.) Dec. 24.

3 Reg. v. May, 10 Cox, C. C. 448; Reg. v. George, 11 Cox C. C. 41; Reg. v. Sleep

9 Cox, C. C. 559; Reg. v. Piche, 30 U. C. c.
P. 409; Reg. v. Brown, L. R. 1 C. C. 244.
4 Reg. v. Coxhead, 1 C. & K..623.
6 ch. 31, sec. 14, supra.
Reg. v. Turner, 8 C. & P. 755.

Reg. v. Perry, 1 Jur. (N. S.) 408; Reg.
v. McKenna, 1 Cr. & Dix, 399; Byrnes' Case,
Ir. Circ. Rep. 392; Reg. v. Bell, Ir. L. R.
(8 C. L.) 542, 546.

8 Boyd v. Boyd, 27 Ind. 429.