whom the attempt is made with her consent is not an accomplice in such sense that her testimony requires corroboration;1 but the woman may be an accomplice in such sense that her admissions or declarations are admissible against the defendant as those of a confederate.2 1152. Concealing birth of a bastard.-There are statutes in some of the states punishing the concealment on the part of the mother of the birth or death of a bastard child, the object of such statutes doubtless being to cover cases where it appears that the bastard was born, but it cannot be shown whether it was born dead or alive, and therefore the crime of child-murder cannot be established. The concealment need not be from all persons, but it is sufficient if the woman does anything to prevent the fact being generally known with the purpose of concealment and the quieting of investigation. These statutes relate to the concealment of the birth only where the child is dead, and the indictment must expressly allege that the child was dead at the time of the concealment, and the concealment as shown must be in connection with the birth and death of the child. The concealment must be with intent to prevent 1C. v. Wood, 11 Gray, 85; C. v. Follansbee, 155 Mass. 274; Dunn v. P., 29 N. Y. 523; S. v. Owens, 22 Minn. 238; Willingham v. S., 33 Tex. Ap. 98; Watson v. S., 9 Tex. Ap. 237. And see supra, § 199. Contra, P. v. Josselyn, 39 Cal. 393, holding, however, that the corroboration need not extend to the particular method employed but only to the general intent of defendant. 2 P. v. Davis, 56 N. Y. 95; P. v. Murphy, 101 N. Y. 126, overruling P. v. Vedder, 98 N. Y. 630. 3 C v. Clark, 2 Ashmead, 105; Pennsylvania v. McKee, Addison, 1; S. v. Kirby, 57 Me. 30; S. v. Ihrig, 106 Mo. 267; Sullivan v. S., 36 Ark. 64; Dunn v. S., 57 Ark. 560; Reg. v. Morris, 3 Cox, 489. 4S. v. Hill, 58 N. H. 475. As to what is sufficient concealment under the English statute, see Rex v. Cornwall, Russ. & Ry. 336; Reg. v. Turner, 8 C. & P. 755; Reg. v. Coxhead, 1 C. & K. 623; Reg. v. Sleep, 9 Cox, 559; 5 Pennsylvania v. McKee, Addison, 1; Reg. v. May, 10 Cox, 448; Reg. v. Bell, 8 Ir. R. C. L. 541. 6 Douglass v. C., 8 Watts, 535; Boyles v. C., 2 Serg. & R. 40. But it is not necessary to state whether the child died before, at, or after, its birth: Reg. v. Coxhead, 1 C. & K. 623. In an English case it is said that the dead body must be found and identified: Reg. v. Williams, 11. Cox, 684. 7C. v. Clark, 2 Ashmead, 105; S. v. Kirby, 57 Me. 30. the fact of birth and death being known; but if the act of disposing of the body is such as to lead to that result, it is not necessary to allege or prove any specific intent. The indictment must allege facts showing the commission of the act and not simply the legal conclusion that accused concealed the birth of the child by secreting it so that it might not be known whether or not it had been born alive. But the means by which the mother endeavored to effect the concealment need not be alleged. The mother alone can be guilty as principal in the offense, but she may commit it through an accomplice, and the accomplice may be guilty of aiding and abetting, if that is made criminal by the statute.' The English cases differ as to what is a "child" within the meaning of the statute, it having been held 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 a fair chance of living, and that under seven months it may fairly be presumed that it would not be born alive; while in another case it is held that it was properly left to the jury to say whether, even though the child had not gone seven months, it had so far matured as to become a child or was only a fetus or the unformed subject of a premature miscarriage." 1 Reg. v. Clarke, 4 F. & F. 1040; Rex v. Higley, 4 C. & P. 366; Reg. v. Bate, 11 Cox, 686; Reg. v. Morris, Cox, 489. 2S. v. White, 76 Mo. 96; S. v. Ihrig, 106 Mo. 267. Foster v. C., 12 Bush, 373. 315 6 Rex v. Douglas, 7 C. & P. 644. 7 Reg. v. Skelton, 3 C. & K. 119; Reg. v. Bird, 2 C. & K. 817. 8 Reg. v. Berriman, 6 Cox, 388. Reg. v. Hewitt, 4 F. & F. 1101. In another case it was said that a fœtus no bigger than a man's finger, but having the shape of a child, was a child: Reg. v. Colmer, 9 Cox, 506. CHAPTER 56. SODOMY. § 1153. What constitutes. This offense is sufficiently described by calling it, with Blackstone, the crime against nature, committed either with a human being or a beast.' A fowl has been thought not to come within the term "beast” in this definition; at any rate it was held that where the fowl was so small that entrance of the male organ into its private parts was impossible and they were torn in the attempt, the crime was not committed,' but the criminal attempt to commit may be with a fowl. The act must be in that part where sodomy is usually committed; the act in a child's mouth does not constitute the offense. No doubt the requirement as to penetration and emission is the same as in rape. If the act is between human beings, each is guilty if both consent, but consent of 14 Bl. Com. 215; C. v. Dill, 160 Mass. 536. Webster defines it as "carnal copulation in a manner against nature; buggery." Under the Texas statute requiring that offenses to be punishable must be expressly defined by statute, it was held that a definition of the offense as "the abominable and detestable crime against nature committed with mankind or beast," was not sufficiently definite: Fennell v. S., 52 Tex. 378; Frazier v. S., 39 Tex. 390. But this is not the rule elsewhere, and it is no longer the rule in Texas, and the statutory description as the crime against nature is sufficient: S. v. Williams, 34 La. An. 87; Cross v. S., 17 Tex. Ap. 476. In states where common-law crimes are not recognized, and there is no statute as to this offense, it is of course not punishable: Estes v. Carter, 10 Ia. 400; Melvin v. Weiant, 36 Ohio St. 184; Davis v. Brown, 27 Ohio St. 326; S. v. Place, 5 Wash. 773. 2 Rex v. Mulreaty, 1 Russ. Cr. 699. 3 Reg. v. Brown, 24 Q. B. D. 357. 4 Rex v. Jacobs, Russ. & Ry. 331; Prindle v. S., 31 Tex. Ap. 551. 5 C. v. Thomas, 1 Va. Cas. 307; Pennsylvania v. Sullivan, Add. 143; Comstock v. S., 14 Neb. 205; Hodges v. S., 94 Ga. 593; Rex v. Reekspear, 1 Moody. 342; Rex v. Cozins, 6 C. & P. 351. Some cases hold that, aside from statutory provisions, emission must be shown: P. v. Hodgkin, 94 Mich. 27; S. v. Gray, 8 Jones, 170; Williams v. S., 14 Ohio, 222; Rex v. Duffin, 1 East, P. C. 365; 2 Bish. Cr. L., § 1127. Penetration may, however, be proved by circumstantial evidence: Collins v. S., 73 Ga. 76; Cross v. S., 17 Tex. Ap. 476. 6 Reg. v. Allen, 2 C. & K. 869; 4 BL Com. 216. one is immaterial as to the guilt of the other. The attempt may be punishable, and a conviction therefor may be had under an indictment charging the offense. So an assault to commit the offense may be punished as an indecent assault, but not where the other party assents, unless such consent is given in ignorance of the nature of the act." § 1154. Indictment. An indictment which charges that defendant "did unlawfully and feloniously commit a certain unnatural and lascivious act" with a person named," or "did feloniously, etc., commit the infamous crime against nature" with, etc., is sufficient. But it is not enough to simply follow the general language of the statute without charging the act. It is not sufficient to say that defendants did commit together "divers lewd, beastly, unnatural and sodomitical practices." The offense may be charged as committed with a certain person named without otherwise alleging that it was committed with a human being as distinguished from an animal,1o or with a "bitch" " or with a "mare, the same being a beast.” 12 1 Reg. v. Jellyman, 8 C. & P. 604. 2 Reg. v. Eaton, 8 C. & P. 417; or an assault with intent to commit: Davis v. S., 3 Har. & J. 154; S. v. Place, 5 Wash. 773. 3 S. v. Frank, 103 Mo. 120. Reg. v. Wollaston, 12 Cox, 180. Reg. v. Lock, L. R. 2 C. C. 10; Mascolo v. Montesanto, 61 Conn. 50. 6 C. v. Dill, 160 Mass. 536. indictment that defendant had a "venerial affair," etc., is not essential: Lambertson v. P., 5 Park. Cr. 200. 8 S. v. Campbell, 29 Tex. 44. Form: But in that state the following was held sufficient: "Did then and there unlawfully and wilfully commit with a mare, the same being a beast, the abominable and detestable crime 'P. v. Williams, 59 Cal. 397; S. v. against nature, by then and there Chandonette, 10 Mont. 280; S. v. having carnal connection with said Williams, 34 La. An. 87. Form: The beast, and did then and there comcommon-law indictment, as given in it the crime of sodomy with said 1 Archb. Cr. Pr. & Pl. 309, is as follows: "That A. B., at - on in and upon one C. D., feloniously did make an assault, and then feloniously, wickedly and against the order of nature had a venerial affair with the said C. D., and then feloniously did know the said C. D., and then feloniously, wickedly and against the order of nature with the said C. D. did commit and perpetrate the abominable crime of buggery." But the allegation in this beast: Cross v. S., 17 Tex. Ap. 476. الله § 1155. Evidence. It is not competent to show a general disposition or inclination to commit such offenses. The crime is one, like rape, easy to charge and difficult to disprove; and therefore the accusation should be clearly made out to warrant conviction, especially if a considerable period of time has elapsed before complaint is made by the injured party. The fact only of such complaint, and not the particulars of it, may be shown. A consenting party is an accomplice, whose evidence must be corroborated." 1 Rex v. Cole, 1 Russ. Cr. 700. 24 Bl. Com. 215; P. v. Moore, 103 Cal. 508. As to rape, see supra, § 458. Reg. v. Robins, 1 Cox, 114. 818 4 S. v. Gruso, 28 La. An. 952. Medis v. S., 27 Tex. Ap. 194; Reg. v. Jellyman, 8 C. & P. 604. And see C. v. Snow, 111 Mass. 411. |