As to the concealment. By the repealed statute of 21 Jac. 1. the concealment of the death of the bastard child by the mother made her guilty of a capital offence, unless she could prove that the child was born dead; and upon this statute it was decided, that if the mother called for help, or confessed herself with child, she was not within its construction: and, upon the same principle, evidence was always allowed of the mother's having made provision for the birth, as a circumstance to shew that she did not intend to conceal it. (y) So upon the 43 G. 3. c. 58. it seems that if the woman has made her pregnancy known to persons not implicated with her in the concealment, it will be an answer to the charge of concealment. Thus where the prisoner threw a bastard child of which she had been delivered into the privy; and it was probable upon the evidence that the child was still-born; Bayley, J. held that this was no answer to the charge of concealment: but he said that if the prisoner had communicated her pregnancy, or, to the knowledge of any other persons, made preparations for her confinement, the case would not have been within the statute. (i) Upon the statute of 21 Jac. 1. the presence even of an accomplice was holden to take a case out of the act; so that where a woman was indicted for the murder of her bastard child, and the mother of the woman was indicted at the same time for being present aiding and abetting, and there was no other evidence of guilt but the concealment by both the prisoners, they were acquitted. (s) And if from the view of the child it were testified by one witness, by apparent probabilities, that it had not arrived at its debitum partús tempus, as if it wanted hair or 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. (a) But the construction upon the 43 G. 3. c. 58. has been different. A woman may be found guilty of concealment, although from appearances it is probable the child was stillborn, and although the birth was probably known to an accomplice. The prisoner and one Diana Thompson were indicted for : the prisoner ought to be put upon her the murder of the prisoner's bastard child: it was a seven months' child, and from the state in which it was found the probability was it was still-born. D. Thompson, when questioned immediately after the child's birth, wholly denied it, though she must have known it. The prisoner threw the child down the privy; and the jury found this an endeavour to conceal the birth: but Silvester, R. doubted the propriety of that finding. Upon a case reserved the Judges were unanimous that this was evidence of an endeavour to conceal the birth, and held the conviction right. (k) Whether the prisoner be charged with the murder of her bastard child by the coroner's inquisition, or by a bill of indictment returned by the grand jury, she may be found guilty under this statute of the 43 Geo. 3. of endeavouring to conceal the birth. (c) SECT. VII. Of Judgment and Execution. The judgment in cases of murder is regulated by the statute 25 Geo. 2. c. 37. which, reciting that this horrid crime had been of late more frequently perpetrated than formerly, was passed in order to add some further terror and peculiar marks of infamy to the punishment of death. By section 1. of this statute it is enacted, that "all persons Time of exe"who shall be found guilty of wilful murder, be executed accord- cution. ing to law on the day next but one after sentence passed, unless "the same shall happen to be Sunday, and in that case on the "Monday following.' The second section enacts, "That the body of such murderer Disposal of so convicted shall, if such conviction and execution shall be in the bodies of "the county of Middlesex, or within the city of London, or the murderers. "liberties thereof, be immediately conveyed by the sheriff or she 56 riffs, his or their deputy or deputies, and his or their officers, "to the hall of the surgeons' company, or such other place as "the said company shall appoint for this purpose, and be deli"vered to such person as the said company shall depute or ap"point, who shall give to the sheriff or sheriffs, his or their deputy or deputies, a receipt for the same; and the body so "delivered to the said company of surgeons shall be dissected and anatomized by the said surgeons, or such person as they shall appoint for that purpose: and in case such conviction and exe"cution shall happen to be in any other county, or other place in "Great Britain, then the Judge or Justice of assize, or other proper Judge, shall award the sentence to be put in execution 66 (k) Rex v. Cornwall, Trin. T. 1817. MS. Bayley, J. and Russ. & Ry. 336. (c) Rex v. Maynard, Mich. T. 1812. MS. Bayley, J. Russ. & Ry. 240. Cole's Sentence to be pronounced immediately. The bodies of murderers may be hung in chains; but may not be buried unless after dissection. Form of the sentence. "the next day but one after such conviction (except as is before excepted); and the body of such murderer shall, in like man66 ner, be delivered by the sheriff, or his deputy and his officers, "to such surgeon as such Judge or Justice shall direct for the 66 purpose aforesaid." The third section enacts, "That sentence shall be pronounced "in open court immediately after the conviction of such mur"derer, and before the court shall proceed to any other business, "unless the court shall see reasonable cause for postponing the 66 same; in which sentence shall be expressed not only the usual "judgment of death, but also the time appointed hereby for the "execution thereof, and the marks of infamy hereby directed for "such offenders, in order to impress a just horror in the mind of "the offender, and on the minds of such as shall be present, of "the heinous crime of murder." By the fifth section, it is provided, "That it shall be in the 66 power of any such Judge or Justice, to appoint the body of any "such criminal to be hung in chains: but that in no case whatsoever, the body of any murderer shall be suffered to be buried, "unless after such body shall have been dissected and anatomized "as aforesaid; and every such Judge or Justice shall and is "hereby required to direct the same either to be disposed of as aforesaid, to be anatomized, or to be hung in chains, in the same manner as is now practised for the most atrocious of"fences." It appears, that the form of the sentence or judgment to be pronounced, in conformity to the provisions of this statute, was made the subject of conference at a meeting of the Judges, (d) and that the following form was agreed upon : "That you be taken from hence to the prison from whence you "came, and that you be taken from thence on the day of 66 instant (or next) to the place of execution, and that you "be there hanged by the neck, till your body be dead; and that your body, when dead, be taken down, and be dissected and "anatomized." There was some doubt whether either judgment of dissection or hanging in chains might not be given; and, if the first were pronounced, whether, if no surgeon would take the body, it might not be hung in chains: but, on debate, it was agreed by nine Judges, that, in all cases within the act, the judgment for dissecting and anatomizing only should be part of the judgment pronounced; and that, if it were thought adviseable, the Judge might afterwards direct the hanging in chains by special order to the sheriff, pursuant to the proviso for that purpose in the statute. (e) A difference of opinion has been entertained upon the point whether the award of dissection and anatomization is or is not an essential part of the sentence: the omission, however, to pronounce it at the time (even supposing it to be essential) may be (d) Rex v. Swan and Jefferys, 1 East. (e) Fost. 107. 1 East. P. C. c. 5. s. 136. p. 374. where it is stated, that such is the practice. rectified during the assizes by having the prisoner again brought up and passing the sentence de novo. Upon a conviction for the murder of a bastard child, the award of dissecting and anatomizing was omitted in passing sentence: other sentences were then passed, and the court adjourned to the Judges' lodgings. In the calendar the award was made. Upon a case reserved all the Judges held that it would have been remedied if the Judge, after the adjournment to the lodgings, had gone again into court and pronounced the right judgment: and Lord Ellenborough, Lord Alvanley, M'Donald, C. B., Heath, J. Rooke, J. and Chambre, J., held that the statute was directory only, and the omission immaterial: but the other six Judges held otherwise; and the prisoner was pardoned upon condition of transportation. (a) But it is not essential to award the day of execution in the sentence, the statute in that case being directory only; and if a wrong day is awarded, it will not vitiate the sentence: at least it may be set right during the assizes; especially if the mistake is discovered and set right before any other business has been done, though on a following day. A trial for murder took place on Thursday; the prisoner was convicted and sentence pronounced for execution upon the Monday following. The court immediately adjourned, but the mistake was discovered in the evening; and on the Friday morning before any other business was done, the prisoner was brought up and sentence awarded for the Saturday; but the execution was respited. Upon a case reserved, Lord Ellenborough, M'Donald, C. B., Heath, J., Grose, J., Chambre, J., and Bayley, J., against Thomson, B., Le Blanc, J., Graham, B., and Wood, B., thought the statute directory only, and that the time did not form a necessary part of the sentence: and all agreed that the mistake might be set right during the assizes, and that the attainder was therefore right. (b) It has been decided by the house of peers, that a peer, convicted of murder, ought to receive judgment according to the provisions of this statute: and it was also decided in the same case that, supposing the day appointed by the judgment for execution should lapse before such execution done (which, however, the law will not presume), a new time may be appointed for the execution either by the high court of parliament, before which such peer shall have been attainted, or by the court of King's Bench, the parliament not then sitting, the record of the attainder being properly removed into that court. (ƒ) By the fourth section of the statute, it is enacted, that after Execution sentence pronounced," in case there shall appear reasonable may be stayed. cause, it shall and may be lawful, to and for such judge or justice before whom such criminal shall have been so tried, to stay the execution of the sentence, at the discretion of such (a) Rex v. Fletcher, Trin. T. 1803. MS. Bayley, J. and Russ. & Ry. 58. (b) Rex v. Wyatt, East. T. 1812. MS. Bayley, J. & Russ. and Ry. 230. (f) Earl Ferrer's case, Fost. 138, 139. 1 East. P. C. c. 5. s. 136. p. 374. Judgment was pronounced according- "judge or justice, regard being always had to the true intent and 66 purpose of this act. By the sixth, seventh, and eighth sections, certain regulations are given, for the treatment of a murderer, after conviction. It is enacted, that such criminal shall be confined in a separate cell, and that no person but the gaoler or his servants shall have access to him, without licence under the hand of the judge or sheriff: and that he shall, between sentence and execution, be fed with bread and water only (except on receiving the sacrament, or in case of necessaries administered medicinally by a professional man), under a penalty upon the gaoler of 207., and imprisonment till it be paid, and forfeiture of his office. But in case the judge or justice shall see cause to respite the execution, he may relax any or all of these restraints, by licence in writing, signed by him. (g) 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 question 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 Bench, and were executed by the marshal.(h) But it seems to have been considered in a late 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 into the court of King's Bench, and afterwards tried at Nisi Prius, without remitting the transcript of the record to the court of King's Bench. (i) (g) S. 7. (h) Athos' case (father and son) as cited in note (r). 1 Hale 463. 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 de fendants, being in the custody of the : |
