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CONCEALING DEATH OF BASTARD CHILD.
DECISIONS UNDER ENGLISH AND AMERICAN STATUTES.
$ 1235. UNDER the statute 43 Geo. 3, c. 58, and 9 Geo. 4, c. 31, s. 14, from which the American acts differ but little, where a woman, delivered of a seven months' child threw it down the privy, and it appeared that another woman, charged as an accomplice, knew of the birth : upon an indictment for murder against the two, the jury found the mother guilty of the concealment; and the point being saved, upon a doubt whether it was a case within the statute 43 Geo. 3, c. 58, as a second person knew of the birth, the judges held that the act of throwing the child down the privy was evidence of the endeavor to conceal the birth, and that the conviction was right.b Where a woman was delivered of a child, the dead body of which was found in a bed amongst the feathers, but there was no evidence to show who put it there, and it appeared that the mother had sent for a surgeon at the time of her confinement, and had prepared child's clothes, the judge directed an acquittal of the charge for endeavoring to conceal the birth.c But where the mother caused the body of her child to be buried privately, her object being to conceal its birth, it was determined that the fact of her having previously acknowledged its birth to several persons, did not prevent her conviction of the concealment. d
Under 9 Geo. 4, c. 31, s. 14, it was 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 the prisoner had gone to a privy for another purpose, and the child came from her unawares, and fell into the soil and was suffocated, she must be acquitted of this charge, notwithstanding her denial of the birth of the child. di
6 R. v. Cornwall, R. & R. 336. d R. v. Douglass, 1 Moody's C. C. c R. v. Higley, 4 C. & P. 366. See 480. R. v. Opie, 8 Cox C. C. 332.
di R. v. Turner, 8 C. & P. 755 – g Ibid.
It is a question of law for the judge, whether there has been a secret disposing of the body; i. e. a disposing of it in such a place as that the offence may have been committed (and a dust-bin is such a place); but it is for the jury to say whether there has been such a disposing of the body by the prisoner with such an intent, and the jury must be satisfied that the prisoner so disposed of it, or was a party to such a disposition of it, with intent. d2
§ 1236. An indictment on stat. 9 Geo. 4, c. 31, s. 14, for endeavoring to conceal the birth of a dead child, need not state whether the child died before, at, or after its birth. e
§ 1237. An indictment for the same offence, which charges that the defendant “did cast and throw the dead body of the child into soil in a certain privy, and did thereby, then and there, unlawfully dispose of the dead body of the said child, and endeavor to conceal the birth thereof,” sufficiently charges the endeavor to conceal the birth, as the word “ thereby” applies to the endeavor, as well as to the disposing of the dead body.f If on the trial of such indictment, it appears that the body of the child was found lying on the soil, immediately under the seat of the privy, it is a question for the jury 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, but the judge on such evidence will not stop the case.g
Placing in an open box, in the prisoner's room, and informing a medical attendant of the fact, is not concealment." g1
§ 1238. Upon the construction of the North Carolina act against the mother, for concealing the birth of her bastard child, it was held that the corpus delicti is concealing the death of a being upon whom the crime of murder would have been committed ; and, therefore, if the child be born dead, concealment is not an offence against the statute. h In the same state it is said that it is not incumbent on the prosecution to show that the child was born alive, but the burden of the showing the contrary is on the accused. i
$ 1239. Where a mother had concealed her bastard child after its death, and there was some evidence given which induced the jury to be of opinion that the child was stillborn, it was held a proper case in South Carolina, for an acquittal.j And an analogous ruling has been had in Maine.ji
Patteson ; S. P., R. v. Coxhead, 1 C.
d? R. v. Clarke, 4 F. & F. 1040.
g- R. v. Sleep, 9 Cox C. C. 559.
A person other than the mother of a bastard child, cannot be convicted of the offence “ of concealing the birth of such child, so that it may not be known whether it was born alive or not,” “unless upon an indictment which charges the mother of the bastard also with the offence. Such a person may, however, upon proper proof, be convicted of aiding, assisting, abetting, counselling, commanding, or procuring the commission of such an offence, upon an indictment which charges the mother with the offence, and such other person as an aider, abettor, &c., although the indictment does not charge such person with being present,” aiding, abetting, &c.k
The size of the fætus does not touch the question of guilt. I But it is said that it must appear that the child had gone such a time in its mother's womb that it would, in the ordinary course of things, when born, have had a fair chance of life. Under seven months it may be fairly presumed that it would not be born alive.m And where it appeared that the prisoner had been confined of a child which had not attained to seven months from conception, it had never lived, and was slightly malformed, it was left to the jury to say whether the offspring had so far matured as to become a child, or was only a fætus, or the unformed subject of a premature miscarriage. n į State v. Love, 1 Bay, 167.
1 R. r. Sleep, 9 Cox C. C. 559. ji State v. Kirby, 57 Me. 30.
m R. v. Berriman, 6 Cox C. C. 388. k State v. Sprague, 4 R. I. 257. n R. v. Hewitt, 4 F. & F. 1101.
VOL. 11. - 14
I. ASSAULTS GENERALLY, $ 1241.
OR AN ASSAULT AND BATTERY,
erty, $ 1255.
(f) Correction by persons in au
thority, $ 1259. (g.) Guilt of major offence, $ 1261.
(h.) Assent, $ 1262. 3. INDICTMENT AND VERDICT, §
TENT, $ 1264.
IN EXECUTION OF THEIR DU.
I. ASSAULTS GENERALLY.
1. What constitutes an Assault, or an Assault and Battery.
§ 1241. An assault is an intentional attempt, by violence, to do an injury to another. 6
Must be in earnest. The attempt must be in earnest; for, if it can be collected, notwithstanding appearances to the contrary, that there is not a present purpose to do injury, there is no assault. 51 Thus, where a man laid his hand on his sword, and said, “ If it were not assize time, I would not take such language from you,” the court agreed that it was not an assault: for the declaration was that he would not assault him, the judges being in town, and the intention as well as the act makes an assault. c When the defendant, at the time he raised his whip, and shook it at plaintiff, though within striking distance, made use of the words, “ Were you not an old man, I would knock you down," this does not import a present purpose to strike, and does not in law amount to an assault. d' So, if a man raise his hand against another, within striking distance, and at the same time say, “ If it were not for your gray hairs, I would tear your heart out," it is no assault, because the words explain the action, and take away the idea of an intention to strike. e And so where the attempt is to obtain carnal connection with a woman, with her consent. el
b State v. Davis, i Iredell, 128 ; Smith v. State, 39 Miss. 521; State i. Richels v. State, 1 Sneed, 606 ; People Mooney, Phill. (N. C.) L. 434; Rainv. Hays, 1 Hill N. Y. R. 351; 1 Hawk. bolt v. State, 34 Texas,6286. ch. 62, s. 1, 2; 1 East's P. C. 406. c Tuberville v. Savage, 1 Mod. 3.
11 Smith v. State, 39 Mississippi, d State v. Crow, 1 Iredell, 375. 521 ; Com. v. Stoddard, 9 Allen, 280;
$ 1242. There must be some movement towards physical violence. -"It must also,” to adopt the language of the late Judge Gaston, f “amount to an attempt; for a purpose to commit violence, however fully indicated, if not accompanied by an effort to carry it into immediate execution, falls short of an actual assault. Therefore it is that notwithstanding many ancient opinions to the contrary, it is now settled that no words can, of themselves, amount to an assault.g It is difficult, in practice, to draw the precise line which separates violence menaced, from violence begun to be executed, for until the execution of it is begun, there can be no assault. We think, however, that where an unequivocal purpose of violence is accompanied by an act which, if not stopped or diverted, will be followed by personal injury, the execution of the purpose is then begun, the battery is attempted.” Thus, riding after a person so as to compel him to run into a garden for shelter, to avoid being beaten, has been adjudged to be an assault. h
When frustrated. — Nor does it matter that the attack was frustrated or intercepted. Where the defendant was advancing in a threatening attitude, with intent to strike the plaintiff, so that his blow would in a second or two have reached the plaintiff, if he had not been stopped, although when stopped he was not near enough to strike, it was held an assault was committed. i
§ 1243. Apparent ability to hurt is sufficient. — An offer to strike hy one person rushing upon another, will be an assault, although the assailant be not near enough to reach his adversary, if the distance be such as to induce the latter, under the accom
e Com. v. Eyre, 1 Serg. & Raw. 346. h Morton v. Shoppee, 3 Car. & Payne,
ed People v. Bransby, 5 Tiffany 373 ; 14 Eng. Com. Law R. 355. (32 N. Y.), 465, 525. See Smith v. i Stephens v. Myers, 4 Car. & Payne, Com. 54 Penn. St. 209. Post, $ 1262. 349; 19 Eng. Com. Law R. 414. See f State v. Davis, 1 Iredell, 128. fully post, $ 2693.
91 Hawk. c. 61, s. 1, p. 110; 2 Comyn, Bat. C.