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for abandoning a child of tender years, so that such child thereby becomes chargeable to a parish, has been brought before the court of criminal appeal in two cases; R. v. Cooper, 1 Den. C. C. R. 459; 18 L. J., M. C. 168, and R. v. Hogan, 2 Den. C. C. R. 277; 26 L. J., aoqql *M. C. 219; but in the former case the indictment did not J allege that the child was not legally settled in the parish in which it had been left by its mother; and in the latter, it was held to be a fatal objection to the indictment, that it did not contain an averment that the prisoner had the means of supporting the child.
A single woman, the mother of an infant child, was indicted for neglecting to furnish it with food, the indictment alleging that she was able and had the means to do so. There was no evidence of the actual possession of means by the mother; but it was proved that she could have applied to the relieving officer of the union, and that if she had so applied, she would have been entitled to and would have received relief, adequate to the due support and maintenance of herself and child. The prisoner having been convicted, the court of criminal appeal quashed the conviction. The case was not argued by counsel, but the court in giving judgment said, "The allegation in the indictment is, that the prisoner being able and having the means neglected to maintain her child. We are of opinion that there was no evidence that she had the means of supporting it, and therefore that the allegation is not made out. To show that she might by possibility have obtained the necessary means is not sufficient." R. v. Chandler, Dears. C. C. 453. R. v. Rugg, 12 Cox, C. C. 16, C. C. R. So where a girl, eighteen years of age, was taken in labor in the house of her stepfather during his absence, and the mother omitted to procure the assistance of a midwife in consequence of which the girl died, and there was no evidence that the mother had the means to pay for the midwife; it was held, that she was not legally bound to procure the aid of the midwife. R. v. Shepherd, L. & C. 147; 31 L. J., M. C. 102.
v. Catherine, 16 Fla. 830. On admissibility of affidavit and warrant on which defendant was arrested. Sidelinger v. Bucklin, 64 Me. 371; Davis r. State, 58 Ga. 170. The relatrix cannot recover her attorney fees. Abshire v. State, 52 Ind. 99. On evidence in support of the complaint. Bay v. Coffin, 123 Mass. 365; State v. Bottorff, 82 Md. 538; State v. Pratt, 40 la, 631. Where in bastardy proceedings an issue is joined on a collateral point, the defendant has a right to claim trial by jury. State v. Beasley, 75 N. C. 211. On a defence to the charge, by evidence to show paternity in some other man than the one accused. See Paulk v. State, 52 Ala. 427; Parker r. Dudlev, 118 Mass. 602; Sabins v. Jones, 119 Mass. 167; State v. Read, 45 la. 469; State t. Britt, 78 N. C. 439; Holcomb v. People, 79 111. 409; State ». Bennett, 75 K. C. 305; State ». Pratt, 40 la. 631 ; People v. Carney, 29 Hun, (N. Y.) 47; McCoy r. People, 71 111. 111. On the admissibility of declarations and admissions of relatrix. See Sidelinger v. Bucklin, 64 Me. 371; State v. Pratt, 40 la. 631; Tholke v. State, 50 Ind. 355; Welch t>. Clark, 50 Vt. 386; McCoy *. People, 71 111. Ill; Keating v. State, 44 Ind. 449; Booth r. Hart, 43 Conn. 480. As to proof that the child is a bastard. See Wilson v. Babb, 18 8. C. 59; Colwell's Succession, 34 La. An. 265; Brock v. State, 85 Ind. 397; State v. Romaine, 58 la. 46; State, v. Worthingham, 23 Minn. 528; Greglev v. Jackson, 38 Ark. 487; Hazzard's Estate, 13 Phila. (Pa.) 335. On the burden of proof and preponderating evidence. See McElhany v. People, 1 111. App. 550; Semon v. People, 42 Mich. 141; McFarland t>. People, 72 111. 368. On reputation of relatrix. Rawles v. State, 56 Ind. 433. On variance from indictment. Kennedy v. Shea, 110 Mass. 152.
The indictment, however, need not allege the ability to provide; it is sufficient if it uses the word "neglect." See Reg. c. Ryland, L. R. 1, C. C. R. 99; 37 L. J., M. C. 10. A doubt is expressed upon this point in R. v. Rugg, supra; but the case of R. v. Ryland was not cited, nor was the point one which affected the decision.
For other offences against children, see pod, p. 403.
Secret disposition of the body 400
Other offences against children ....... 403
Statute. The offence of concealing the birth of a child was first provided against by the 21 Jac. 1, c. 27, which was repealed by the 43 Geo. 3, c. 58. The latter statute was also repealed and the offence provided for by the 9 Geo. 4, c. 31, s. 14. This is also repealed; and now by the 24 & 25 Vict, c 100, s. 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 die before, at, or after its birth, endeavor to conceal the birth thereof, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labor: 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."1
Upon a prosecution for this offence, the prosecutor, after establishing the birth of the child, must prove the secret burying or other disposal of a dead body, the identity of the body with that of the child so born, and the endeavor to conceal the birth. In general, the evidence to prove the first point will also tend to establish the last.
Secret disposition of the body. What has been a sufficient disposal of the body has hitherto been a matter of doubt. Where the evidence was, that the prisoner had been delivered of a child, and had placed it in a drawer, where it was found locked up, the drawer being opened by a key taken from the prisoner's pocket, Maule, J., directed an acquittal, being of opinion that the former statute by the words, "buried or otherwise disposed of," contemplated a final disposing of the body. R. v. Ash, 2 Moo. & R. 294. So where the prisoner had placed the child in a box in her bed-room, Rolfe, B., held that the disposing of the body must be in some place intended for its final
1 See Pennsylvania v. McKee, Addison, 1; Boyles v. Commonwealth, 2 S. & R. 50, If the child is proved to have been born dead, though the mother concealed its birth, she cannot be convicted. State v. Kirby, 57 Me. 30. S.
deposit. R. v. Bell, MS. 2 Moo. & R. 294. These authorities have since been overruled. R. v. Goldthorpe, 2 Moo. C. C. R. 244. There the prisoner had been suspected of being with child, but always denied it, and after her delivery persisted in denying that she had been delivered, but on being pressed by the surgeon who examined ♦her, she confessed that the child was between the bed and the mattress, where it was discovered. The case having been re- L served, was considered at a meeting of the judges in Michaelmas term, 1841, at which all the judges, except Alderson, B., Patteson, Erskine, and Bosanquet, JJ., were present, when Lord Abinger, C. B., Maule, J., and Ralfe, B., thought the conviction bad; the other judges held it good, and the conviction was affirmed. The point was again reserved in R. v. Pern^, Dears. C. C. R. 473; 24 L. J., M. C. 137. There the prisoner placed the dead body of the child under the bolster, with the intention of endeavoring, as far as she could, to conceal the body from the surgeon, but with the intention of removing it elsewhere when an opportunity offered. This was held by the Court of Criminal Appeal (Pollock, C. B., dissentiaite) to be disposing of a dead body within the statute. And it appears from the case of R. v. Opie, 8 Cox, C. C. 332, that Martin, B., took the same view as the Lord Chief Baron. Where the prisoner denied to her mistress that she was in the family way, but told the doctor she had been confined and the child was in a box in her bed-room, and the child was found in a box with the lid open in her bed-room, Byles, J., left it to the jury to say if they thought this was a secret disposition of the body. In his opinion it was not. R. v. Sleep, 9 Cox, C. C. 559. Where the prisoner put the dead body of her child over a wall into a field where there was no path, this was held to be a secret disposition. R. v. Brown, L. R. 1 C. C. R. 244; 39 L. J., M. C. 94. Where the prisoner was stopped going across a yard, in the direction of a privy, with a bundle, which on examination was found to be a cloth sewed up, containing the body of a child; it was held by Gurney, B., that the prisoner could not be convicted, the offence not having been completed. R. v. Snell, 2 Moo. & R. 44. Evidence was given that the prisoner denied her pregnancy, and also, after the birth of the child, denied that also; but she afterwards confessed to a surgeon that she had borne a child. The body of the child was, on the same day, found among the soil in the privy. Patteson, J., held it to be essential to the commission of the offence, that the prisoner should have done some act of disposal of the body after the child was dead; therefore if she had gone to the privy for another purpose and the child came from her unawares, and fell into the soil, and was suffocated, she must be acquitted of the charge, notwithstanding her denial of the birth of the child. The prisoner was acquitted. R. v. Turner, 8 C. & P. 755, 34 E. C. L. See also R. v. Coxhead, 1 C. &. K. 623, 47 E. C. L.
Frances Douglas and one Robert Hall were indicted for the murder of a female child, of which they were acquitted; whereupon the jury were desired to inquire whether the female was guilty of endeavoring to conceal the birth. The prisoners had been living together for some time, and in the night, or rather about four in the morning, she was delivered of the child, in the presence of the male prisoner, who was the father of it, and who, with his two sons, aged fourteen and ten, all slept on the same pallet with her, up four pairs of stairs. The male prisoner very soon afterwards put the child (which had not l>een separated from the after-birth) into a pan, carried it down 6tairs into the cellar, and threw the whole into the privy, the female prisoner remaining in bed up stairs. She was proved to have said she knew it was to be done. The fact of her being with child was, some time before her delivery, known by her mother, who lived at some distance, and was apparent to other women. No female was present at the *4ft91 *deuveiy > one had been sent for at the commencement of the -1 labor, about twelve at night, but was so ill that she could not attend. There were no clothes prepared, or other provision made, but the parties were in a state of the most abject poverty and destitution. The jury found her guilty of endeavoring to conceal the birth, and two points were reserved for the opinion of the judges: 1st, Whether there was evidence to convict the prisoner as a principal? 2ndly, whether, in point of law, the conviction was good? The case was argued before all the judges (except Park, J.), who were of opinion that the communication made to other persons was only evidence, but no bar, and that the conviction was good; but they recommended a pardon. R. v. Douglas, 1 Moo. C. C. 480. So in R. v. Skelton, 3 C. & K. 119, "Vaughan Williams, J., directed the jury, that if a woman be delivered of a child which is dead, and a man take the body and secretly bury it, she was indictable for the concealment by secret burying under s. 14 of the former statute, and he for aiding and abetting under s. 31, if there was a common puqwse in both in thus endeavoring to conceal the birth of the child; but that the jury must be satisfied, not only that she wished to conceal the birth, but was a party to the carrying that wish into effect by the secret burial by the nana of the man, in pursuance of a common design between them. Piatt, B., had ruled in a similar way in R. v. Bird, 2 C. & K. 817, 61 E. C. L.
An indictment for endeavoring to conceal the birth of a child need not state whether the child died before, at, or after the birth. R. v. Coxhead, 1 C. & K. 623, 47 E. C. L.
It seems, per Martin, B., that a foetus not bigger than a man's finger, but having the shape of a child, is "a child" within the statute. R. v. Colmer, 9 Cox, C. C. 506 ; but in R. v. Hewitt, 4 F. & F. 1101, Smith, J., left it to the jury to say whether what the prisoner had concealed was a child or was only a foetus.
The words of the statute are "any secret disposition of the dead body;" and, where a woman deposited a child while alive in a field, and there left it to die, and the dead body of the child was afterwards found, it was held that the woman could not be convicted under the statute. R. v. Jane May, 10 Cox, C. C. R. 448.
Upon an indictment for the murder of a child, any person, on failure of the proof as to the murder, may be now convicted by the