born infant, whether it died before or after its birth, a substantive offense. This enactment is not confined to bastards, nor does it limit criminal liability to the mother of the child, but renders criminal every person who endeavors to conceal the birth." [2] B. In United States. Some of the state statutes which create the offense of concealing the death of a child' were taken, although not literally, from 21 Jac. I c 27,8 and some have been traced back to provincial statutes; but in some of these same jurisdictions, later statutes are, with some exceptions, in the identical words of 9 Geo. IV c 31 14.10 By many of these statutes the concealment of the death of a bastard child is made a substantive statutory offense, a misdemeanor by some, a felony by others.11 Some of the statutes make a separate substantive offense of concealing pregnancy and being willingly and of purpose delivered alone in secret.12 Other statutes create two offenses; one consisting in secretly disposing of the dead body of a newborn child, the other in endeavoring to conceal the birth of such child.13 Statutes creating offenses of this nature do not preclude an indictment for murder if the evidence is sufficient.14 II. NATURE AND ELEMENTS English statute, as under 9 Geo. IV c 31, it is immaterial that the child was born dead;18 but it is essential to show the death of the child.19 And under some statutes in the United States, the birth of the child alive or dead is deemed immaterial,20 although the death of the infant must be alleged and proved.21 In order to be a "child" within the statutes it has been held that the fetus must have attained a sufficient development within the womb to give it a chance of life.22 [5] C. Illegitimacy of Child. In as much as concealment was usually attempted only by a mother desiring to conceal or destroy evidence of her shame or to escape punishment,' it was, by the earlier statutes of England,24 and is now in the 23 366, 19 ECL 556 (where the statute | KyL 408 (where it is said that, al- | Cornwall, R. & R. 250. And see 9 is set out in full). [a] This statute makes concealment of birth a substantive misdemeanor.-Its terms do not limit it to bastards only, but it was directed only against concealment by the mother of the infant. It continued the provision of 43 Geo. III c 58, allowing an acquittal of a mother charged with murder, and a verdict of concealment of birth. 6. Reg. v. Brown, L. R. 1 C. C. 244. 7. See statutory provisions; and Sullivan v. State 36 Ark. 64; Com. v. Clark, 2 Ashm. (Pa) 105. 8. Dunn v. State, 57 Ark. 560, 22 SW 212; State v. Conover, (N. J.) 4 Cr. L. Mag. 233; Pennsylvania v. McKee, Add. (Pa.) 1. [a] In North Carolina 21 Jac. I was in force until repealed by act of the legislature. State v. Jeffreys, 7 N. C. 480. 9. State v. Kirby, 57 Me. 30. 10. Com. v. Hessler, 17 Pa. Dist. 939 [rev on other grounds 39 Pa. Super. 107]. 11. Dunn v. State, 57 Ark. 560. 22 SW 212; Brightly's Purdon Dig. (Pa.) 472. And see statutory provisions. as [a] In Arkansas, under an indictment for concealing the death of a bastard child, under Mansfield Dig. § 1543, providing that "every such mother shall suffer the same punishment as for manslaughter," it is error to treat the indictment charging the crime of manslaughter. The statute defines a new offense, which consists not in causing the child's death, but in concealing it. If the mother has, in fact, killed her child, she may be indicted and punished for the homicide. Dunn V. State, 57 Ark. 560, 22 SW 212. 12. State v. Conover, (N. J.) 4 Cr. L. Mag. 233. 13. State v. Stewart, 93 N. C. 539. 14. Sullivan v. State, 36 Ark, 64 (reciting statutory provision to this effect). And see Wade v. Com., 1 though an action of murder would lie for the death of the child, yet when the death was probably caused without guilty intent, the action should be brought under the statute). 15. See statutory provisions. See also infra §§ 4-7. 16. 4 Blackstone Comm. 198. 17. See cases infra this note. [a] In Maine, where the statute renders criminal the concealing the death of the child "so that it is not known whether it was born dead or alive," the accused is entitled to an acquittal if it is made to appear that the child was born dead, for the statute looks to a concealment, "so that it is not known" at any time, past or present. whether or not the child was born alive. State v. Kirby, 57 Me. 30. [b] In North Carolina (1) under an enactment the wording of which was closely modeled on the statute of James I, but which made the concealment of the death of a bastard a misdemeanor, it was held necessary to prove the birth of the child alive, it being considered that the concealment of the birth of a child born dead was no offense within the statute; but it was held that the presumption was that the child was born alive, and the burden of showing the contrary was on the accused. State V. Joiner, 11 N. C. 350. (2) Under the present code it appears that the offense denounced in the statute (Code [1883] § 1004) is the secret of the dead disposal body of a child born alive or the endeavor to conceal the birth of such a child. State v. Stewart, 93 N. C. 539. [c] In South Carolina an acquittal was had in one case on the strength of evidence that the child was stillborn. State v. Love, 1 S. C. L. 167. 18. Reg. v. Coxhead, 1 C. & K. 623, 47 ECL 623: Reg. v. Wright, 9 C. & P. 754, 38 ECL 437: Rex v. Poulton, 5 C. & P. 329, 24 ECL 590; Rex v. Geo. IV c 31 § 14 (set out in full in Rex v. Higley, 4 C. & P. 366, 19 ECL 556). 19. Reg. v. Bell, Ir. R. 8 C. L. 541; Perkin's Case, 1 Lew. C. C. 44; Rex v. Davis, 1 Russell Crimes (9th Am. ed) 779. [a] Act of disposal after death.(1) As a consequence of the language of 9 Geo. IV c 31, and 24 & 25 Vict. c 100 § 60, it is necessary to prove some act of disposal after the death of the child in order to constitute the offense. Reg. v. Turner, 8 C & P. 755, 34 ECL 1003. (2) Thus, where a mother, to conceal the birth, put her child alive in the corner of a field to die from exposure and it was found dead, she was held not to have committed this statutory offense, although she was guilty of a crime at the common law. Reg. v. May, 10 Cox C. C. 448. [b] A dead body must be found and identified as that of the child of which the mother is alleged to have been delivered. Reg. V. Williams, 11 Cox C. C. 684. 20. See cases infra note 21. 21. State v. Ellis. 43 Ark. 93; Com. v. Hopkins, 5 SW 392, 9 KyL 432; State v. White, 76 Mo. 96; Douglass v. Com., 8 Watts (Pa.) 535. 22. McLoud v. State, 122 Ga. 393. 50 SE 145 (holding that Pen. Code § 79 contemplates and seeks to prevent the concealment of the death of such infants as, having been illegitimately begotten, arrive at the stage where they are ordinarily to be called "quick" and would, in the usual course of events, probably be born alive); Reg. v. Berriman, 6 Cox C. C. 388. But see Reg. v. Colmer, 9 Cox C. C. 506 (where it was held that a fetus not bigger than a man's finger, but having the shape of a child. is a child within 24 & 25 Vict. e 100 § 60). 23. State v. Kirby, 57 Me. 30. 24. St. 21 Jac. I c 27; 43 Geo. III c 58 § 3. 28 majority of the jurisdictions in this country necessary that the child be, or if born alive would have been, a bastard.2 But under the later English acts, and under the statutes of some states,27 the fact that the child, if born alive, would have been a bastard, is not made an element of the offense. [6] D. Concealment-1. Intent to Conceal. In order to constitute the offense of concealing birth or death, there must be an intent to conceal the birth or death, or to conceal the body of the child,28 not from an individual, but from the world at large;" although the concealment need not be from every one;30 and if the facts are such as to show that the disposal of the body, although apparently equivocal in character, was not intended to be a concealment, there can be no conviction.31 Hence where the child slips from the mother into a privy vault, the mother being there for another purpose, or where, although the child was found in a place of concealment, it was proved that the mother had prepared clothes for the child and had 32 25. Ark. Sullivan V. State, 36 Ark. 64. Ga. McLoud v. State, 122 Ga. 393, 50 SE 145. Ky.-Wade v. Com., 1 KyL 408. Me.-State v. Kirby, 57 Me. 30. N. H.-State v. Hill, 58 N. H. 475. N. J.-State v. Conover, 4 Cr. L. Mag. 233. Pa.-Douglass v. Com., 8 Watts 535; Boyles v. Com., 2 Serg. & R. 40 (where a verdict was held bad for omitting to find that the child was a bastard); Com. v. Moll, 39 Pa. Super. 107 [rev 17 Pa. Dist. 939]; Com. v. Clark, 2 Ashm. 105. R. I.-State v. Sprague, 4 R. I. 257. 26. 9 Geo. IV c, 31 § 14 [cit Rex v. Douglas, 7 C. & P. 644, 32 ECL 8011; 24 & 25 Vict. c 100, set out in Reg. v. Brown, L. R. 1 C. C. 244. 27. State v. Ihrig 106 Mo. 267, 17 SW 300; State v. White, 76 Mo. 96; State v. Stewart, 93 N. C. 539. 28. State v. Conover, (N. J.) 4 Cr. L. Mag. 233; Reg. v. Brown, L. R. 1 C. C. 244; Reg. v. Clarke, 4 F. & F. 1040. 29. Reg. v. Morris, 2 Cox C. C. 489. [a] Concealment through fear of an individual.-Where a girl secretly threw her dead child into a pond, and said she should have had it buried in the churchyard only that she was afraid of provoking her father, Coltman, J., said that if the jury should believe this, she was not guilty, as the offense contemplated by the statute (9 Geo. IV c 31) was the endeavor to conceal the birth from the world at large, and not from an individual. Reg. V. Morris, 2 Cox C. C. 489. 30. State v. Hill, 58 N. H. 475. [a] Existence of confidant does not prevent act being concealment. (1) The act of concealment is not taken out of the statute by the fact that some confidant or participant in the act is informed thereof under a request of secrecy. State v. Hill, 58 N. H. 475; Reg. v. Morris, 2 Cox C. C. 489. (2) And so, of course, where the statute is directed against the guilty mother, "her aiders, abettors, Counselors and procurers.' State v. Conover, (N. J.) 4 Cr, L. Mag. 233. (3) Under the statute of 21 James I. it was held to take the case out of the operation of the act, that an accomplice was present at the birth. Rex v. Peat, 1 East P. C. 229. 31. State v. Conover, (N. J.) 4 Cr. L. Mag. 233. 32. State v. Conover, (N. J.) 4 Cr. L. Mag. 233; Reg. v. Coxhead, 1 C. & K. 623, 47 ECL 623. [a] Effect of denial of birth. Where the statute declares that any 33 sent for a surgeon at the time of her confinement, she would not be guilty of the offense. On the other hand, it is not necessary in proving this intent to show that the body had been put in a place of final deposit.34 [7] 2. What Constitutes Concealment.35 The concealment of the death of the child must not be simply with the intent to conceal that fact, but the concealment must be effected in such a way "that it may not come to light whether it was born dead or alive, or whether it was murdered or not.'' 36 Under the English statutes, "a secret disposition" must be shown. What is a secret disposition must depend on the circumstances of the case.37 A complete exposure may be a secret disposition, as where the body is placed in a secluded spot;38 and, on the other hand, a disposition in a closed box, where it is known to be constantly resorted to, may indicate that the body is placed there specially for the purpose of discovery, and, therefore, not be a secret disposition within the statute." 39 woman shall be guilty of a mis-, cealment of the death of the bastard demeanor who, after being delivered of a child, shall by secret disposition of the dead body endeavor to conceal its birth, it is necessary to prove some act of disposal after the child's death; and where a woman had gone to a privy for another purpose, and the child came from her unawares and fell into the soil and was suffocated, it was held that a conviction was improper, although she had denied the birth of the child. Reg. v. Turner, 8 C. & P. 755, 34 ECL 1003 (construing 9 Geo. IV). 33. Rex v. Higley, 4 C. & P. 366, 19 ECL 556; Rex v. Peat, 1 East P. C. 229; 2 Bacon Abr. 107. Compare Rex v. Poulton, 5 C. & P. 329, 24 ECL 590 (where it was held that slight evidence of the mother having previously spoken to others concerning diapers for the child was insufficient, in connection with the manner of concealment, to show a lack of intent to conceal). 34. Reg. v. Goldthorpe, C. & M. 335, 41 ECL 186; Reg. v. Gogarty, 7 Cox C. C. 107; Reg. v. Perry, 6 Cox C. C. 531; Reg. v. Farnham, 1 Cox C. C. 349. [a] Thus, where the mother of a child, of which she had been recently delivered, placed it under a bolster on which she laid her head, the act being done with the intention of concealing the body, it was held that she might properly be convicted of endeavoring to conceal the birth by secretly disposing of the dead body, although she meant to remove the body elsewhere when an opportunity offered. Reg. v. Perry, 6 Cox C. C. 531. [b] The previous doctrine overruled by these above cases was that the act of disposal must have been intended to be final, and therefore, if a prisoner was interrupted in the act of disposal, or if the body was deposited in a place from which a further removal was contemplated, that the act did not apply. Reg. v. Waterage, 1 Cox C. C. 338; Reg. v. Jones, 2 M. & Rob. 295; Reg. Halton, 2 M. & Rob. 295; Reg. v. Ash, 2 M. & Rob. 294; Reg. v. Bell, 2 M. & Rob. 294 note; Rex v. Snell, 2 M. & Rob. 44; Reg. v. Watkins, 1 Russell Crimes (9th Am. ed) 777. 35. Sufficiency of evidence to show concealment see infra § 11. V. 36. State V. Kirby, 57 Me. 30; Com. v. Clark, 2 Ashm. (Pa.) 105, 112 (where the court said: "The legislature were aware, that such concealments were too often preceded by the actual murder, by the mother, of her illegitimate offspring; and to arrest the tendency to the commission of the more serious crime, they punished the mere con child, provided such concealment took place under circumstances rendering it equivocal, whether such death was the result of natural causes or of violence. Concealment of death at or about birth, and the dangers connected with such concealment, were the evils proposed to be remedied. It was not mere concealment of the death of a bastard child that required penal infliction; but it was such concealment as prevented the fact from 'coming to light whether it was born alive or dead, or whether it were murdered or not'"). 37. Bovill, C. J., in Reg. v. Brown, L. R. 1 C. C. 244. [a] To constitute the offense within § 60 of the Offenses Against the Person Act of 1861 there must be a concealment of the fact of birth and that concealment must be carried out by the secret disposition of the dead body. The secret disposition must be of such nature that anyone coming to the place where the body is would not be likely to see it. Rex v. Rosenberg, 70 J. P. 264. 38. Reg. v. Brown, L. R. 1 C. C. 244; Reg. v. Piche, 30 U. C. C. P. 409, 415 (where the court said: "The most open place, as it is said, might be the most secret place of deposit if removed from the ordinary haunts or visitation of others. So the most public place of deposit might also be the most secret place, if it were not likely to be resorted to, or were not likely to be suspected as a place of concealment for such a purpose"). [a] As for instance if the body was placed in the middle of a moor in the winter, on the top of a mountain, or in any other secluded spot. Reg. v. Brown, L. R. 1 C. C. 244. 39. Reg. v. Cook, 11 Cox C. C. 542; Reg. v. George, 11 Cox C. 41. And see infra § 11. [a] Illustrations.—(1) Leaving the dead body of a child in a small box inside a large one which was closed, but not locked or fastened, the boxes being in a bedroom, but in such a position as to attract the attention of those who daily resorted to the room, is not a secret disposition of the body. Reg. v. George, 11 Cox C. C. 41. (2) Placing the body in an open box in the prisoner's bedroom, and afterward, on inquiry by the medical man, informing him that the child was in the box where it was found, is not a secret disposition. Reg. v. Sleep, 9 Cox C. C. 559, 560 (where the court said: "There must be a secret disposition [of the body] for the purpose of concealing the birth and a disposition could only be secret by placing it where it was not likely to be found"). 41. Russell Crimes (9th ed) 775; Reg. v. Bird, 2 C. & K. 817, 61 ECL 817. 44 52 though it need not state whether it died before, at, or after its birth.51 Under some statutes it has been held necessary to allege in what manner and by what acts this concealment was effected, but under others such an allegation is unnecessary." The intent or motive in the concealing need not be stated.54 Unnecessary allegations, not descriptive of the offense charged, may be treated as surplusage.5 40. See 43 Geo. III c 58; 9 Geo. I that, being a misdemeanor, all the IV c 31; Reg. v. Wright, 9 C. & P. participants, if guilty at all, must be 754, 38 ECL 437. guilty as principals and charged as doers. But the court held that one might be convicted as principal, although charged only in language appropriate to an accessory before the fact, by reason of the general words of the statute, which allow participants to be charged as principals or accessories "according to the nature of the offense." State v. Sprague, 4 R. I. 257. [a] Consequently, if there was no evidence to convict the mother, all were entitled to acquittal. Reg. v. Skelton, 3 C. & K. 119; Reg. v. Waterage, 1 Cox C. C. 338. [b] Under 9 Geo. IV c 31 g 14, (1) if the mother concurring with her paramour endeavored to conceal the birth, and he in consequence of her persuasion took the child and buried it, she could be convicted of endeavoring to conceal the birth and he could be convicted as an accomplice. Reg. v. Bird, 2 C. & K. 817, 61 ECL 817. (2) But it should be clear, not only that she wished to conceal the birth, but that there was a common design-an agency-between her and the man. Reg. V. Skelton, 3 C. & K. 119. 42. See 24 & 25 Vict. c 100 § 60. And see Reg. v. Brown, L. R. 1 C. C. 244. 43. State v. Sprague, 4 R. I. 257. 44. Com. v. Moll, 39 Pa. Super. 107; State v. Sprague, 4 R. I. 257. Compare Frey v. Com., 83 Ky. 190 (where it is held that the statute defining the crime and punishment of concealment of birth is intended to apply to the mother only, and therefore the offense does not admit of aiders and abettors, although, if the child was born alive and concealed so that death ensued, all the participants would be guilty of murder; and it was held that the general statute making accessories before the fact liable as principals, being designed to apply only in cases where the offense existed at the common law, or where the offense, although created by statute, applies to all who are guilty, did not affect the case). [a] In Rhode Island, although the statute which defines the crime of concealment of birth is directed only against the mother of the child, yet by virtue of a general enactment which provided that "every person who shall aid, assist, abet, council, hire, command, or procure another to commit any crime or offense shall be proceeded against as principal or as accessory before the fact, according to the nature of the offense committed," one who counsels and procures a woman to commit this offense may be punished under an indictment properly framed. Under the statute, a concealment of birth is a misdemeanor merely, and it was contended [b] In Wisconsin all crimes punishable by imprisonment in state prison admit of accessories before the fact, and therefore, although the crime of concealing birth is but a misdemeanor, yet, as it is punishable by imprisonment in state prison, one who counsels and procures the commission of this offense by the mother may be indicted with her as an accessory before the fact, and may be Nichols punished accordingly. State, 35 Wis. 308. V. 4 45. State V. Conver, (N. J.) Cr. L. Mag. 233; State v. Stewart, 93 N. C. 539. 46. See generally Indictments and Informations [22 Cyc 157]. 47. State v. Stewart, 93 N. C. 539, 540. (2) So an indictment charging that defendant did cast and throw the dead body of the child into soil in a privy, "and did thereby then and there unlawfully dispose of the dead body of the said child, and endeavour to conceal the birth thereof," sufficiently charged the endeavor to conceal the birth, as the word "thereby" applied to the endeavor as well as to the disposing of the dead body. Reg. v. Coxhead, 1 C. & K. 623, 47 ECL 623. [c] For forms of indictment in whole, in part, or in substance, see Sullivan v. State, 36 Ark. 64; State v. White, 76 Mo. 96; State v. Stewart, 93 N. C. 539; Com. v. Clark, 2 Ashm. (Pa.) 105. 48. Sullivan v. State, 36 Ark. 64. 49. Rex v. Douglas, 7 C. & P. 644, 32 ECL 801. 50. State V. Ellis, 43 Ark. 93; Douglass v. Com., 8 Watts (Pa.) 535; Rex v. Davis, 1 Russell Crimes 779 [cit 3 Jacob Fisher Dig. col 3127]. [a] Suficient allegation of death. -An allegation in an indictment that Sarah "the said infant having, on the day and year, &c., died, did endeavor, privately, to conceal the death of the said infant" is a sufficient allegation of its death. Boyles v. Com., 2 Serg. & R. (Pa.) 40. State v. White, 76 Mo. 96. [a] Where it is the nature of the fact of concealment that constitutes 51. State v. Ellis, 43 Ark. 93; the offense, without which the simple Reg. v. Coxhead, 1 C. & K. 623, 47 fact of concealment may be harmless, the omission to aver the existence of the circumstances making the act criminal is fatal. Com. v. Clark, 2 Ashm. (Pa.) 105 (In this case a count in an indictment upon which a defendant was convicted averred that she brought forth alive a basand that she did endeavor privately tard child, which immediately died, to conceal the death of said child, so that it might not come to light, by casting and throwing the body of said child into a certain privy, with intent to conceal the death of said child. The court arrested judgment because the indictment did not aver, in the language of the act under which it was brought, that it was done "so that it may not come to light, whether it was born dead or alive, or whether it was murdered or not"). [b] Sufficient averment of offense. -(1) An indictment charging that defendant "unlawfully and wilfully did endeavor to conceal the birth of a new born male child, not yet named, of her, the said Laura Stewart (defendant) by then and there secretly placing and leaving the dead body of said child in a secret place, contrary to the form of the statute," etc., sufficiently charges the offense under Code § 1004. ECL 623. 52. Reg. v. Hounsell, 2 M. & Rob. 292 (holding that an indictment for concealing the birth of a child "by secretly disposing of the dead body," showing the mode of disposing of the under 9 Geo. IV c 31 § 14, without dead body, was bad). [a] In Kentucky (1) Gen. St. § 14 art 4 c 29, contemplates a physical by drowning, secretly burying, or in concealment of a bastard child, either some other way; and therefore the acts constituting the offense must be stated in the indictment. Foster v. Com., 12 Bush (Ky.) 373. (2) Thus the allegation that the accused "did feloniously conceal the birth of a bastard child, the issue of her body, by secreting the said child so that it might not be known whether or not it had been born alive, said child being dead when found," is only the statement of a conclusion of law, and is insufficient to support a judgment of conviction. Foster v. Com., supra. 53. State V. Ellis, 43 Ark. 93; Wright v. U. S., 4 Ind. T. 116, 69 SW 819; Boyles v. Com., 2 Serg. & R. (Pa.) 40. 54. State v. Ihrig, 106 Mo. 267, 17 SW 300; State v. White, 76 Mo. 96. And see Bishop St. Crimes § 778. 55. Wright v. U. S., 4 Ind. T. 116, 69 SW 819. V. ISSUES, PROOF, AND VARIANCE [§ 10] In order to avoid variance the evidence in the indictment is regarded as surplusage," it must correspond with the allegations in the indict- need not be proved.58 ment.5 However, where a particular allegation 56 VI. EVIDENCE [§ 11] The evidence, in order to authorize a conviction, must be sufficient to show the existence of every essential element of the offense.59 The evi VII. [12] On a prosecution for concealing the birth or death of a child, questions of fact are to be de 56. Reg. v. 6 Cox C. C. 391 (holding that, where the indictment alleged the concealment to have been in and among a certain heap of carrots, and the evidence was that the body was laid on the heap but behind it so that it was hidden from the passer-by by the upper part of the heap, the evidence did not support the indictment). [a] Proof of name of child.-(1) Where one count of an indictment described the child as "Harriet Stroud," and the second count as "a female of tender age, whose name is to the jurors aforesaid unknown," and the only evidence was that the child was baptized "Harriet," and was so called, but there was no evidence that it had been called "Harriet Stroud," it was held that a conviction could not be sustained on either of these counts, as the variance in the first was fatal, and to sustain the second there must have been evidence showing that the name could not reasonably have been supposed to be known to the grand jury. Reg. v. Stroud, 1 C. & K. 187, 47 ECL 187. (2) But if the only count in the indictment is an allegation that the name "is unknown" to the jurors, evidence that the mother had said that she wished the child to be given a certain name, and on two occasions had called it such name, is not a sufficient variance to avoid the conviction. Rex v. Smith, 6 C. & P. 151, 25 ECL 368. And see Reg. v. Evans, 8 C. & P. 765, 34 ECL 1009 (holding that evidence that a child six weeks old was baptized on a Sunday, and from that day to the following Tuesday was called by its name of baptism and its mother's was sufficient to warrant the jury in finding that it was properly described by those names in the indictment). To like effect Rex v. Sheen, 2 C. & P. 634, 12 ECL 776. surname, 57. See supra § 9. 58. Wright v. Ü. S., 4 Ind. T. 116, 69 SW 819. 59. Mo.-State v. Ihrig, 106 Mo. 267, 17 SW 300. N. J.-State v. Conover, 4 Cr. L. Mag. 233. Pa. Com. v. Clark, 2 Ashm. 105. Eng.-Reg. v. Brown, L. R. 1 C. C. 244; Reg. v. Cook, 11 Cox C. C. 542; Reg. v. Opie, 8 Cox C. C. 332. Newdfoundl-Reg. V. Travers, Newfoundl. 521. 4 [a] The rule has been applied (1) to elements necessary under the statutes of particular jurisdictions, such as the birth of the child alive (Com. v. McKee, Add. (Pa.) 1; Com. V. Clark, 2 Ashm. (Pa.) 105; Rex v. Poulton, 5 C. & P. 329, 24 ECL 590). (2) its illegitimacy (Com. v. Clark, 2 Ashm. (Pa.) 105), (3) and its death (Reg. v. Bell, Ir. R. 8 C. L. 541). (4) Where the death of the child is undisputed the evidence must show an intent to conceal, the sufficiency of which will depend on the circumstances attending each particular case. Thus, where the body of the child was found a few hours after its birth on the floor of an attic in the house where the mother lived as a domestic servant, the head severed from the body and both lying on sheets which had been removed dence must also sustain the conjunctive requirements of the statute, if such a provision is made.60 TRIAL termined by the jury, under proper instructions from the bedroom below, in which | C. 542. (9) So a conviction will be on which the child was born the that the child, as a result of a fall, v. Ihrig, 106 Mo. 267, 17 SW 300. (7) one on sustained where the evidence shows that the prisoner wrapped the child in paper and placed it in a suit case with clothing, that she succeeded in concealing the body in this way for two days after the birth, that she intended to carry the child away and bury it, and did not disclose where it was until the doctor threatened to call in an officer. Com. v. Hessler, 39 Pa. Super. 115. (10) It appeared that the prisoner who lived alone had placed the dead body of the child behind a trunk in the room which she occupied, between the trunk and the wall, and on being charged with having had a child denied it, but when pressed by one of the women present she pointed out where the body was, and the woman went and got it. Until so pointed out the body could not be seen by anyone in the room. The jury having found her guilty of concealment, the court refused to interfere. Reg. v. Piche, 30 U. C. C. P. 409. (11) Where, three days after it was born, the body of the child was found in a tub covered over with a small cloth, behind the door of a privy belonging to the house where woman a the mother lived as a domestic servant, it was held that there was no conclusive evidence to warrant verdict of concealment of birth. ' Reg. v. Opie, 8 Cox C. C. 332. (12) was deMere proof that a livered of a child and allowed two others to take away its body was held insufficient to convict for concealment of birth, where there was no proof that the child was taken away at her request or privity. Reg.. v. Bate, 11 Cox C. C. 686. (13) A child was found in a dust bin a day or two after its birth, having been accidentally strangled by the umThe side of the child, bilical cord. mother of the which was dead, and there was evi- child was a servant in the house dence to show that the prisoner where the body was found. Martin, alone had been in the outhouse dur- B., was of opinion that the dust bin ing that hour. Lord Campbell, C. J., was a place in which the body might said: "There cannot be any reasonbe disposed of so as to conceal it, able doubt that the prisoner visited but it was not shown who put the the outhouse after the child was body there, and the prisoner was acdead, and although she did not requitted. Reg. v. Clarke, 4 F. & F. move it, any replacing of the clothes 1040. or other things by which the body was concealed from view, would, I think, be an endeavour to conceal by a secret disposal of the dead body within the statute." Reg. v. Hughes, 4 Cox C. C. 447, 448. (8) Although the fact of the mother having placed the dead body of her newly born child in an unlocked box is not of itself sufficient evidence of concealment of birth, yet where the proof was that the prisoner was a house servant, and went to bed on December 18, and remained in her room until December 20, when, being discharged, she removed the box to her mother's and being asked by the police to take out its contents was seen to take out a bundle and throw it into the mouth of a flour sack behind the door, and this bundle contained the dead body of a child, this was held sufficient evidence of concealment, even though the box was unlocked and the housemaid had access to it. Reg. v. Cook, 11 Cox C. What constitutes elements of offense see supra §§ 4-7. 60. State v. Conover, (N. J.) 4 Cr. L. Mag. 233 (holding that, where the offense consisted in the mother's concealment of her pregnancy "and" the birth of her bastard child, defendant must be acquitted where it appears that, prior to her confinement, she had informed her mother and her paramour of her pregnancy). 61. Reg. v. Coxhead, 1 C. & K. 623, 47 ECL 623 (holding that, where the child is found under the seat of a privy, it is for the jury to say whether it was cast there by the mother after its death, or came from her unaware while there for another purpose); Reg. v. Hewitt, 4 F. & F. 1101 (where it was left to the jury to say whether an offspring, six or seven months after conception, had so far matured as to become a child or was still only a fetus); Reg. v. Clarke, 4 F. & F. 1040. 62. Com. v. Hopkins, 5 SW 392, 9 VIII. APPEAL AND ERROR [13] Error in the charge of the court affords no ground for setting aside a conviction, where, in view of the evidence, the error is harmless." 63 *CONCEDER. A French word meaning to grant.1 CONCEDO. I grant.2 CONCEIVE. To think, to understand, to have a complete idea of;3 to believe, suppose, form a notion, or think;* to formulate in words. The term is synonymous with "think," "believe," " "apprehend," "imagine," "understand."'" CONCEJO (also spelled consejo). In Spanish law, council or board. Thus the governing body of a pueblo (town) is known as the concejo." In northern Spain (Asturias and Leon) the term has been applied to districts comprising scattered parishes and governed by two elective judges, counselors, and a procurator general.8 Concejo abierto. A mass meeting of the citizens of a town presided over by the chief judicial functionary and legally convoked for the consideration of affairs of common, interest. In recent times it could be held only with the royal assent and for the purposes therein specified; but it is probably a survival of that form of the Teutonic folk-moot which prevailed in northern Spain during the Visigothic period and other vestiges of which are yet extant.1 10 Concejo de la Mesta. An organization of stockmen or cattle-raisers dating from 1501 designed to advance the interests of the cattle industry, and endowed by the government with special privileges of great value and importance.11 Consejo real (or de Castilla). An ancient Spanish tribunal exercising both administrative and judicial functions but superseded in 1834 by two others, namely, Consejo real de España é Indias which acquired the administrative, and Tribunal KyL 432; Com. v. Moll, 39 Pa. Super., 107 [rev 17 Pa. Dist. 939]. 63. McLoud v. State, 122 Ga. 393, 50 SE 145. supreme de España é Indias which succeeded to the judicial, functions.1 12 Consejo de Estado (Council of State). A Spanish advisory council, selected by the king for consultation regarding important public interests. It was suppressed by Fernando VII in 1834.13 Consejo supremo de Hacienda. A fiscal tribunal established formally in the reign of Philip II (15561598) but existing before, charged with supervision of the public revenues and the trial of causes pertaining thereto. In 1835 it was superseded by the Tribunal supremo de Hacienda.14 Consejo supremo de Indias. An administrative and judicial tribunal established in 1511 to exercise jurisdiction over matters arising in the Spanish colonies. In 1834 its administrative powers were taken over by the Consejo real de España é Indias and its judicial functions by the Tribunal supremo 15 Consejo real de Espana e Indias. An administra tive body established in 1834 to furnish advice and consultation to the several ministries constituting the Spanish cabinet.16 Consejo de guerra de oficiales generales. A Spanish military tribunal for the trial of army officers of any rank for military offenses.17 Consejo de Guerra ordinario. A tribunal corresponding to the above for the trial of soldiers from the rank of sergeant down.18 Consejo de Agricultura y Comercio. A consultative body established in 1847 to give advice to the Spanish minister of commerce, instruction, and public works. Its name was changed by royal decree in the ensuing year to Consejo real de Agri 19 done under similar circumstances," was not erroneous as leaving the standard of diligence to the mere conception or notion of the jury. 1. Strother v. Lucas, 12 Pet. (U. Hays v. Paul, 51 Pa. 134, 142, 88 S.) 410, 429 note (b), 9 L. ed. 1137 AmD 569. (2) Where in an instruc(contained in a note to a document tion the words "conceive," "preconby Robert Greenhow, translator of|ceived," "premeditation," and "delibforeign languages in the department of state of the United States). 2. Black L. D. [a] Use of term.-A word used in old Anglo-Saxon grants, and in statutes merchant. Black L. D. [b] "Dedi" distinguished.-In an action involving the construction of a conveyance, the court said: "This word do or dedi, which is the apt word of feoffment, as that conveyance was anciently called a donatio, is not, however, the word used in the deed before us. The only word, in the present case, that can be considered as implying a covenant, is grant; (concedo;) Co. Litt. 9, a, b, and that word is carefully to be distinguished from the other." Frost v. Raymond, 2 Cai. (N. Y.) 188, 194, 2 AmD 228. eration" were defined, and the jury 4. Century D. [quot State V. [a] "Consider" as equivalent.The two terms, "conceive" and "consider," mean substantially one and the same thing. State v. Wheeler, 97 Wis. 96, 100, 72 NW 225 [cit Peo. v. Cherry Valley, 8 N. Y. 476, where "considering" was used in the sense of "conceiving"]. 5. Century DÐ. [a] Illustration.-The word "conceived" as used in the forty-fourth rule of practice for the circuit courts in common-law actions providing that "objections to interrogatories, or to the form in which they are conceived, must be assigned in writing before the commission issues, or the deposition is taken." means "expressed in a particular way,' "formulated." Canon v. Green, 56 Fla. 211, 212, 47 S 935. 6. Webster D. [quot State V. Wheeler, 97 Wis. 96, 100, 72 NW 225]. [a] "Conceives himself aggrieved."-Where a statute regulating highways gave appeal to any person the right of who should conceive himself aggrieved by the determination of the commissioners, the court, in construing the statute, said: "It cannot admit of a doubt that any person may appeal whether he be aggrieved or not; it satisfies the statute if he 'conceives himself to be aggrieved.'" Peo. v. Champion, 16 Johns. (N. Y.) 61, 64 [quot State v. Wheeler, 97 Wis. 96, 101, 72 NW 225]. "Apprehend" as synonymous see Apprehend 4 C. J. p 1410 note 18. 7. Escriche Diccionario. Escriche Diccionario. Escriche Diccionario. 8. 9. *By WARREN LEE KINDER (Conceder-Conflict inclusive except the Spanish words and phrases.) |