who kills himself must be non compos of course; for it is said to be impossible that a man in his senses should do a thing so contrary to nature and all sense and reason. If this argument be good self-murder can be no crime, for a madman can be guilty of none; but it is wonderful that the repugnancy to nature and reason, which is the highest aggravation of this offence, should be thought to make it impossible to be any crime at all, which cannot but be the necessary consequence of this position that none but a madman can be guilty of it. May it not, with as much reason, be argued that the murder of a child or of a parent is against nature and reason, and consequently that no man in his senses can commit it": 1 Hawk. c. 9, s. 2.

In England the attempt to commit suicide is not an attempt to commit murder, within 32 & 33 V. c. 20, but still remains a common law misdemeanour: R. v. Burgess, L. & C. 258; R. v. Doody, 6 Cox, 463.

An aider and abettor, called a principal in the second degree, is one who is actually or constructively present when an offence is committed; one who counsels or procures the commission of an offence, but is absent when it is committed, is called at common law an accessory before the fact. Both are now treated as principals: s. 61, ante; but that section does not apply as to punishment where the offence of counselling or of aiding and abetting is made a distinct offence. As to what is a counselling or procurement see remarks under the said section.

that on

at

Indictment.one A. B. committed suicide, and that on divers days before the said offence was coumitted by the said A. B., as aforesaid, C. D. did unlawfully move, procure, aid, counsel, hire and command the said A. B. the said offence and suicide to do and commit (or, that C. D. was present and aiding and abetting the said A. B. in the commission of the said offence and suicide.)

If the suicide was not committed yet the inciting to it is an offence: R. v. Gregory, L. R. 1 C. C. R. 77; so is the conspiracy by two persons to commit suicide together, B. 527.

See R. v. Dyson, R. & R. 523; R. v. Russell, 1 Moo. 356. This last case applies only to an accessory, not to an aider and abettor : R. v. Towle, R. & R. 314.

A. and B. go out together with a gun to kill D. A. fires the shot, but his gun bursts and kills himself (A). A. has committed suicide, and B. was aider and abettor to that suicide.

ATTEMPT TO COMMIT SUICIDE. (New).

238. Every one who attempts to commit suicide is guilty of an indictable offence and liable to two years' imprisonment.

See remarks under preceding section; fine, s. 958.

that A. B. on

Indictment.unlawfully and wilfully did attempt and endeavour to unlawfully kill himself and thereby to commit suicide.

NEGLECT BY A MOTHER IN CHILD-BIRTH TO OBTAIN ASSISTANCE. (New).

239. Every woman is guilty of an indictable offence who, with either of the intents hereinafter mentioned, being with child and being about to be delivered, neglects to provide reasonable assistance in her delivery, if the child is permanently injured thereby, or dies, either just before, or during, or shortly after birth, unless she proves that such death or permanent injury was not caused by such neglect, or by any wrongful act to which she was a party, and is liable to the following punishment :

(a) If the intent of such neglect be that the child shall not live, to imprisonment for life;

(b) If the intent of such neglect be to conceal the fact of her having had a child, to imprisonment for seven years.

See ante, remarks under s. 219.

This is new. It is taken from the English bill of 1880. The Imperial Commissioners reported thereon as follows: "The subject of child-murder is one as to which the existing law seems to require alteration. At present no distinction is made between the murder of a new-born infant by its mother, and the murder of an adult. Practically this severity defeats itself, and offences which are really cases of child murder are

often treated as cases of concealment of birth simply.

This section will afford a means of punishment for child murder where there would be a practical difficulty in obtaining a conviction for that offence."

Under a charge of child murder the accused cannot be found guilty of this new offence created by s. 239. A verdict of concealment of birth may be given if the evidence warrants it, s. 713. The punishment would then be under next section.

If R. v. Handley, 13 Cox, 79, is good law, the offence covered by this s. 239 would at common law, when the child dies after birth, be murder or manslaughter.

It is not easy to imagine a case where it would be possible to obtain a conviction under this section, where a child dies before, even if it is only just before, his birth. The expression itself "dies before his birth" is not a happy one; see s. 219, ante.

The words "unless she proves," etc., are utterly useless. Either the prosecutor's case must be proved or not. If it is, the jury must convict; if not, they must acquit; and it is not if it is not proven that the death or injury was caused by the neglect.

a

Indictment under (a).

that A. B. on

at

then and there being with child and about to be delivered, did unlawfully, with intent that her said child should not live, neglect to provide reasonable assistance in her delivery, whereby her said child was permanently injured, (or died during or shortly after birth.) A verdict of guilty under s-s. (b) may be given upon this indictment if the evidence warrants it.

CONCEALING DEAD BODY OF A CHILD.

240. Every one is guilty of an indictable offence, and liable to two years' imprisonment, who disposes of the dead body of any child in any manner, with intent to conceal the fact that its mother was delivered of it, whether the child died before, or during, or after birth. R. S. C. c. 162, s. 49. (Amended). 24-25 V. c. 100, s. 60 (Imp.).

Fine, s. 958. A conviction for this offence may be given upon an indictment for child murder, s. 714.

The enactment applies not only to a mother, but to every one who disposes of the dead body of a child with intent to conceal its birth. The repealed clause had the words "by any secret disposition."

Indictment.

that A. B., on

was delivered of a child; and that subsequently, on , the said child having died, the said A. B. did unlawfully dispose of the dead body of the said child by secretly burying it with intent to conceal the fact that she had been delivered of it. (State the means of concealment specially.)

In R. v. Berriman, 6 Cox, 388, 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. But in a later case, R. v. Colmer, 9 Cox, 506, Martin, J., ruled that the offence is complete on a foetus delivered in the fourth or fifth month of pregnancy, not longer than a man's finger, but having the shape of a child.

Final disposition of the body is not material, and hiding it in a place from which a further removal was contemplated would support the indictment: R. v. Goldthorpe, 2 Moo. 244; R. v. Perry, Dears. 471.

Leaving the dead body of a child in two boxes, closed but not locked or fastened, one being placed inside the other 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 within the meaning of the statute: R. v. George, 11 Cox, 41.

What is a secret disposition of the dead body of a child within the statute is a question for the jury, depending on the circumstances of the particular case. Where the dead body of a child was thrown into a field, over a wall 4 feet high separating the yard of a public house from the field,

and a person looking over the wall from the yard might have seen the body, but persons going through the yard or using it in the ordinary way would not, it was held, on a case reserved, that this was an offence within the statute: R. v. Brown, 11 Cox, 517, Warb. Lead. Cas. 94.

Although the fact of the prisoner having placed the dead body of her newly-born child in an unlocked box is not of itself sufficient evidence of a criminal concealment of birth, yet all the attendant circumstances of the case must be taken into consideration in order to determine whether or not an offence has been committed: R. v. Cook, 11 Cox, 542.

In order to convict a woman of attempting to conceal the birth of her child, under s. 711, post, a dead body must be found and identified as that of the child of which she is alleged to have been delivered. A woman, apparently pregnant, while staying at an inn, at Stafford, received by post, on the 28th of August, 1870, a Rugby newspaper with the Rugby post mark upon it. On the same. day, her appearance and the state of her room seemed to indicate that she had been delivered of a child. She left for Shrewsbury next morning, carrying a parcel. That afternoon a parcel was found in a waiting room at Stafford station. It contained the dead body of a newly-born child, wrapped in a Rugby Gazette, of August 27th, bearing the Rugby postmark. There is a railway from Stafford to Shrewsbury, but no proof was given of the woman having been at Stafford Station: Held, that this evidence was not sufficient to identify the body found as the child of which the woman was said to have been delivered, and would not therefore justify her conviction for concealment of birth: R. v. Williams, 11 Cox, 684.

Where death not proved conviction is illegal: R. v. Bell, 8 Ir. R. C. L. 542.

A, being questioned by a police-constable about the concealment of a birth, gave an answer which caused the