stable thither, and pointed out where she had thrown in the body, and it was found wrapped in a towel and dressed in a cap and shirt; and she afterwards stated that she had put away the body in a box in her room for two days, after which she threw it into the water, and said she should have had it buried in the churchyard, only she was afraid of provoking her father: Coltman, J., told the jury that the offence contemplated by the Act (9 Geo. 4, c. 31), was the endeavour to conceal the birth from the world at large, and not from any individual. The statute did not apply to individuals, but to society in general. If, therefore, the secret disposal of the dead body arose from an endeavour to conceal the birth from some private individual, and not from the world at large, then the offence contemplated by the statute had not been committed; and if the jury believed that the prisoner was really actuated by the dread of provoking her father's displeasure, she was not guilty of this offence. (m)

Where, on an indictment under the repealed Act 9 Geo. 4, c. 31, for concealing the birth, a surgeon stated that the remains were those of a child of which the mother must have gone from seven to nine months; Erle, J., told the jury that this offence cannot be committed unless the child had arrived at that stage of maturity at the time of birth that it might have been a living child. It is not necessary that it should have been born alive, but it must have reached a period when, but for some accidental circumstances, such as disease on the part of itself, or of its mother, it might have been born alive. There is no law which compels a woman to proclaim her own want of chastity; and if she had miscarried at a time when the foetus was but a few months old, and therefore could have had no chance of life, you could not convict her upon this charge. No specific limit can be assigned to the period when the chance of life begins; but it may, perhaps, be safely assumed that, under seven months, the great probability is that the child would not be born alive.' (n)

In a case which arose under the repealed Act of 21 Jac. 1, where it appeared from the view of the child and by apparent probabilities, that it had not arrived at its debitum partûs tempus, as it wanted hair and nails, the case was considered as not being within that statute, on account of there being presumptive evidence that the child was born dead; but under such circumstances it was left to the jury upon the evidence, as at common law, to say whether the mother was guilty of the death. (0)

The dead body of the child must be found and identified even on an indictment for attempting to conceal the birth. (p)

An indictment for concealing the birth of a child must expressly allege the child to be dead, for it is only an offence to conceal the dead body. (q)

An indictment stated that the prisoner endeavoured to conceal the birth of her child by secretly disposing of the dead body;' and it was objected that the mode of disposal ought to be stated to enable the Court to see whether it amounted to the complete disposition contemplated by the statute (9 Geo. 4, c. 31); one mode was specified in the Act, and any other ought to be stated; and Maule, J., expressing a strong opinion that the objection was good, the counsel for the prosecution declined to press the case. (r)

An indictment under the repealed Act 9 Geo. 4, c. 31, alleging that the prisoner did cast the dead body of her child into the waters and filth 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,' is sufficient; for the word 'thereby' applies both to the disposal and to the endeavour; and the indictment need not allege that the child died before, at, or after its birth. (8)

Where an indictment for murder was held bad, because it neither named the child nor stated that its name was unknown, it was held that the prisoner could not be convicted of endeavouring to conceal the birth of the child; for the indictment being bad for its professed purpose was bad altogether. (t)

If the prisoner were charged with the murder of her bastard child by the coroner's inquisition, she might have been found guilty, under the 43 Geo. 3, of endeavouring to conceal the birth, for the coroner's inquisition is a charge. (u)

SEC. XIV.

Of Judgment and Execution. (uu)

The judgment and mode of execution in cases of murder, is now regulated by the 24 & 25 Vict. c. 100, and 31 & 32 Vict. c. 24.

By 24 & 25 Vict. c. 100, s. 1, Whosoever shall be convicted of murder shall suffer death as a felon.' (v)

Sec. 2. Upon every conviction for murder the Court shall pronounce sentence of death, and the same may be carried into execution, and all other proceedings upon such sentence and in respect thereof may be had and taken, in the same manner in all respects as sentence of death might have been pronounced and carried into execution, and all other proceedings thereupon and in respect thereof might have been had and taken, before the passing of this Act, upon

(r) R. v. Hounsell, 2 M. & Rob. 292. But as the present clause has the words 'any secret disposition,' it should seem that an indictment in this form would be good; for every secret disposition is included. See Holloway v. R., 17 Q. B. 317, where it was held that a count for aiding an escape was good, though it did not state the means used, because the words of the 4 Geo. 4, c. 64, s. 43, are, shall, by any means whatever, aid.'

(s) R. v. Coxhead, 1 C. & K. 623, Platt, B.

(1) R. v. Hicks, 2 M. & Rob. 302. Coleridge and Maule, JJ.

(u) R. v. Maynard, Mich. T. 1812. MS. Bayley, J., R. & R. 240. Cole's case, 3 Campb. 371. 2 Leach, 1095. Dobson's case, 1 Lew. 43. Moylan's case, ib. 44, and there seems no doubt that the prisoner might be so convicted under the new statute, for the prisoner is tried for the murder' as much on the inquisition as on the indictment. C. S. G.

(uu) As to judgment where the prisoner is insane, see vol. i. p. 141.

(v) This clause is taken from the 9 Geo. 4, c. 31, s. 3, and 10 Geo. 4, c. 34, s. 4 (I).

a conviction for any other felony for which the prisoner might have been sentenced to suffer death as a felon.'

By the 4 Geo. 4, c. 48, s. 1, ante, where any person was convicted of any capital felony, except murder, the Court, instead of pronouncing sentence of death, was empowered to order that sentence to be recorded. By the 6 & 7 Will. 4, c. 30, s. 2, which applied both to England and Ireland, it was enacted, that sentence of death may he pronounced after convictions for murder in the same manner, and the judge shall have the same power in all respects as after convictions for other capital offences.' In R. v. Hogg, (w) Lord Denman, C. J., held, that under this clause sentence of death might be recorded on a conviction for murder. By the 7 Will. 4 & 1 Vict. c. 77, s. 3, whenever any offender is convicted before the Central Criminal Court of any crime punishable with death, that Court may direct judgment of death to be recorded. This clause clearly included murder. This clause, so far as it relates to murder, and the 6 & 7 Will. 4, c. 30, s. 2, are repealed by the 24 & 25 Vict. c. 95, and the present clause renders it imperative upon the Court to pass sentence of death on every person convicted of murder; it leaves, however, the time of passing the sentence, and all other proceedings, exactly as they were before this Act passed. (x)

By the 31 & 32 Vict. c. 24, (y) s. 2, judgment of death to be executed on any prisoner sentenced on any indictment or inquisition for murder, shall be carried into effect within the walls of the prison in which the offender is confined at the time of execution. The Act directs that certain persons shall be present at the execution, &c.

By 24 & 25 Vict. c. 100, s. 3, 'The body of every person executed for murder shall be buried within the precincts of the prison in which he shall have been last confined after conviction, and the sentence of the Court shall so direct.' (z)

By 31 & 32 Vict. c. 24, s. 6, the body of every offender executed shall be buried within the walls of the prison within which judgment of death is executed on him, provided that if one of Her Majesty's principal Secretaries of State is satisfied on the representation of the visiting justices of a prison that there is not convenient space within the walls thereof for the burial of offenders executed therein, he may, by writing under his hand, appoint some other fit place for that purpose, and the same shall be used accordingly

Where two persons had been convicted of a barbarous murder in Pembrokeshire, at the Hereford assizes, being the next English county, and the indictment had been removed by certiorari into the Court of King's Bench, in order to argue some exceptions, which were overruled, that Court decided, after some questions made. whether the prisoners ought not to be sent back to Herefordshire to receive sentence, that they had the same jurisdiction over facts committed in Wales, as if committed in the next adjacent county in England; and the prisoners were therefore sentenced in the King's

(w) 2 M. & Rob. 380.

(x) See further observations on this point, Greaves' Cr. Acts, 30, 2nd edit.

(y) This Act, with certain modifications,

applies to Scotland and Ireland, see ss. 13 & 14.

(z) This clause is founded on the 2 & 3 Will. 4, c. 75, s. 16, and 4 & 5 Will. 4, c. 26,

Bench, and were executed by the marshal. (a) But it seems to have been considered in one case, that sentence pursuant to the statute 25 Geo. 2, c. 37, may be passed by a judge at nisi prius upon an indictment for murder removed by certiorari at the instance of the Attorney-General into the Court of King's Bench, and afterwards tried at nisi prius, without remitting the transcript of the record to the Court of Queen's Bench. (b)

On the application of the Attorney-General, the Court of Queen's Bench will, as a matter of course, grant a habeas corpus to bring up prisoners convicted of murder and sentenced to death at the assizes, and a certiorari to remove into the Queen's Bench the record of the conviction and judgment. The prisoners were convicted of murder at Chester, and sentenced to be executed the next Friday; but a question arose, whether, since the 11 Geo. 4 & 1 Will. 4, c. 70, ss. 13, 14, and 15, the sheriffs of the city or the sheriff of the county were bound to execute the sentence; and both parties refusing to do it, the prisoners had been from time to time respited. The Attorney-General moved for a certiorari to remove the record of the conviction and the judgment, and for a habeas corpus to bring up the prisoners, in order that execution might be awarded by the King's Bench, and said he considered himself entitled to the writs as of right but from respect to the Court, and for his own justification in the course he adopted, he stated the grounds of his application, and cited many cases to shew that he was entitled to the writs as of course, and that the Court of King's Bench might direct execution to be done by the sheriff of the county of Chester, or those of the city, by the sheriff of Middlesex, or by the marshal of the King's Bench; and the writs were forthwith granted by the Court. (c)

When the prisoners were brought up and called upon to state if they had anything to say why execution should not be awarded, one of them prayed three days' time to answer; and the Court, in the exercise of its discretion, granted the application as to both. (d) When the prisoners were brought up again, one of them pleaded ore tenus, (e) that the King by proclamation in the 'Gazette' had promised pardon to any person, except the actual murderer, who should give information, whereby such murderer should be apprehended and convicted; and that he, not being the actual murderer, had given such information, and thereby entitled himself to the pardon. The Attorney-General demurred to the plea ore tenus, and the Court held that it was bad. (f) The Court in the same case also refused to hear an application from the sheriff of Middlesex, into whose custody the prisoners had been removed, praying that the order to do execution might not be made upon him. (g)

(a) Athos' case (father and son) as cited in note (r), 1 Hale, 464, where it is said that the prisoners were executed at Kennington gallows, near Southwark. In Taylor's case, 5 Burr. 2797, the reporter says that he remembers this case; and.that the defendants, being in the custody of the marshal, were executed at St. Thomas a Waterings, near the end of Kent-street. And see also the case in 1 Str. 553, and 8 Mod. 136; and see the Sissinghurst-house case, ante, p. 120.

CHAPTER THE SECOND.

OF MANSLAUGHTER.

In this species of homicide, malice, which has been shewn (a) to be the main ingredient and characteristic of murder, is considered to be wanting; and though manslaughter is in its degree felonious, yet it is imputed by the benignity of the law to human infirmity; to infirmity which, though in the eye of the law criminal, is considered as incident to the frailty of the human constitution. (b)

In order to make an abettor to a manslaughter a principal in the felony, he must be present aiding and abetting the fact committed. (c) It was formerly considered that there could not be any accessories before the fact in any case of manslaughter, because it was presumed to be altogether sudden, and without premeditation. (d) And it was laid down, that if the indictment be for murder against A., and that B. and C. were counselling and abetting as accessories before only (and not as present aiding and abetting, for such are principals), if A. be found guilty only of manslaughter, and acquitted of murder, the accessories before will be thereby discharged. (e) But the position ought to be limited to those cases where the killing is sudden and unpremeditated; for there are cases of manslaughter where there may be accessories. (f) Thus a man may be such an accessory by purchasing poison for a pregnant woman to take in order to procure abortion, and which she takes and thereby causes her death. (g) Where two men fought with fists and the one was killed, and before fighting by agreement they each deposited a pound with the defendant, upon the terms that after the fight he was to hand over the two pounds to the winner, the defendant, who was not present at the fight, and took no further part in the circumstances attending it than to hold the money and to hand it over afterwards to the survivor, was held not liable to be convicted of being accessory before the fact to the manslaughter. (h) There may be accessories after the fact in manslaughter. (i)

(f) R. v. Gaylor, D. & B. C. C. 288. (g) Ibid.

(h) R. v. Taylor, 44 L. J. M. C. 67, L. R. 2 C. C. R. 147.

(i) 1 Hale, 450. 1 East, P. C. c. 5, s. 123, p. 353. R. v. Greenacre, 8 C. & P. 35. Tindal, C. J., Coleridge and Coltman, JJ. This seems to have been doubted before the statute 1 Anne, stat. 2, c. 9, s. 1 (2 Hawk. P. C. c. 29, s. 24); but the effect of that statute seems to have removed the doubt. So much of the 1 Anne as relates to accessories is repealed by the 7 Geo. 4, c. 64.