#### Stat*e v*. Joiner.

From Pitt.

Upon the construction of the 2d section of the act of 1818, *eh. 98S,*JV. Ü. against a mother for concealing the death of her bastard child: *held,*by a majority of the Court, that the *corpm delicti*is concealing the death of a being upon whom the crime of murder could have been committed : therefore, if the child is *horn*dead, no concealment is an offence against the statute.

It is not incumbent on the prosecution to show that the child was born alive, but the burden of shewing the contrary, is *on*the accused.

' This was an indictment against the Defendant, a single woman, and contained three counts.

The first and second counts were for the murder of her bastard child, laying the death to have been accom-*351plislied by different kinds of violence, and both concluding at common law : the third count was for a misdemeanor in concealing the birth of the child, and con-eluded against the form of the statute.*

The prisoner was found not guilty on the first and second counts, but guilty on the third j and moved first, for a new trial, because the Court instructed the Jury that upon the third count, it was not a material enquiry whether the child was born alive or not. This motion was overruled, and a motion was then made in arrest, for that the third count did not allege that the child was born alive, nor that it died.

The count was as follows, “that the said *Rinney Joi*ner, on the twenty-seventh of November” &c. *“*being big with a certain male child, afterwards, to-wit, on the same day and year last aforesaid, at and in the county of Pitt aforesaid, by the providence of God, did bring forth the said child of the body of her the said *Rinney Joiner,*alone and in secret, which said male child, if the same had been born alive, would by the laws of this state have been a bastard *•,*and that the said *Rinney Joiner,*being moved by the instigation of the Devil, after-wards, to-wit, on the said twenty-seventh day of November *in the*year” &c. “as soon as the said male child was born, with force and arms, at and in the county of Pitt aforesaid, unlawfully, wickedly, and wilfully, did throw, put and place the said male child under and beneath a crib there situate ; and the said male child did *352then and there, under and beneath the crib aforesaid, unlawfully, wickedly and wilfully, hide, secrete, and conceal, she the said *Rinnetj Joiner,*in manner and form ]asf aforesaid, endeavoring privately, so to conceal the death of the said male child, that it might not come to light whether the said child were born alive or not? but be concealed, against the form of the statute,” &c.

The Court, Paxton Judge, overruled the motion in arrest and pronounced sentence, and the prisoner appealed.

*

*Act of*1818, *ch.*985, *N. R. s. 2.*

*Be it further enacted,*That if any woman be delivered of issue óf her body, male or female, which being' born alive, would by the laws of this state be a bastard, and she endeavours privately, either by drowning, or secret burying thereof, or any other way, either by herself or the procuring of others, solo conceal the death thereof, as that it may not come to light, whether it were born alive or not, but be *>*concealed ; in every such case, the said mother so offending, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine not exceeding five hundred dollars, and an imprisonment not exceeding twelve months.

Tayior, C. J. —

The statute of 21 *James*1, was passed on account of the difficulty of proving the child’s being born alive, in the case of its murder by the mother; it therefore makes the concealment of its death, almost conclusive evidence of its being murdered by the mother. But the extreme severity of the law prevented it from being carried into full operation ; and upon trials for that offence, presumptive evidence was required that the child was born alive, before the other presumption that it was killed by its parent was admitted to convict the prisoner. But even under that statute, presumptive evidence was admissible that the child was born dead ; and if, from a view of the child, it were testified by one witness, by apparent probability, that it had not arrived at its *debi tunc partus tempus,*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.

This statute was repealed in this State by the act of 1818, which restored the common law in trials for the offence of murdering a bastard child.

33ut although the concealment of the death of the child was justly conceived by the Legislature as insufficient to raise a presumption that the mother had murdered it, so as to be convicted of that crime, yet it was an offence calculated to destroy the proof by which the mother might *353have been convicted. The State shall not be called upon to prove that the child was born alive, because the mo-1 ther has suppressed the means by which such fact could be proved, and this, while it is an offence in itself, also raises a presumption against the mother that the child wms born alive. The mother cannot be prosecuted for murder by reason of this concealment, and therefore she shall be prosecuted for a misdemeanor. It is therefore apparent to me, that *the corpus delicti*described in the act, is concealing the death of a being- upon which the crime of murder could have been committed. If therefore, the mother can shew that the child was born dead, the presumption raised against her by the concealment is destroyed. She has committed no misdemeanor, because the. subject concealed was not a human being upon whom the crime of murder could have been committed. The act in using the word “ delivered/’ could only contemplate the birth of a live child, and not that sort of delivery which takes place before a woman can, according to the rules of parturition, be delivered of a live child.

The .Legislature may be supposed to have addressed the woman thus : “ We could convict you for the murder of tills child *;*but to convict you it would be. necessary to prove that the child was born alive. This you have put out of our power to prove, because you have concealed the death of the child ; and in so doing, you have committed an offence against public justice, in suppressing the means of a prosecution for murder.” But if the woman can shew that the child was born dead, she has not impeded the course of justice, and ought not to be convicted. I therefore think, it was fairly and strictly within the province of the Jury, to consider whether the child was born dead or alive. — There ought to be a new trial.

Henderson, Judge. —

The offence consists in concealing the death, so that it. could not be known whether the child be born alive. The object is, to prevent the *destroying*such children, not the concealment of their *dead**354*bodies;*the prevention of the latter is resorted to, as a mean to prevent the former. It is therefore not incum-1 bent on the State to prove, that the child was born alive, (jie agenCy ()f the mother in concealing the death, *i. c.*the manner of the deal!), and thereby preventing punishment from falling on the person who deprived it of life, is the *corpus delicti*; but if it appears, either by the evidence on the part of the State, or that which may be introduced on the part of the mother, that the child was born dead, or came to its death by natural means, it destroys the *probability*of the crime which the Legislature intended to prevent, having bcen committed. The Judge should therefore have informed the Jury, that to make out the crime of misdemeanor, created by our act of 1818, it was not necessary to be *proven*that the child was born alive; but if, from the evidence, they were satisfied that the child was born dead, or that it came to its death by natural means, that they should acquit, under the act. As to the child’s being killed in the womb by design, so that it came dead into the world, that is an offence different from the one created by the act. To give a contrary construction, would be disregarding the substance and catching at the shadow, sacrificing the end to the means. It would require the conviction of the mother, who had concealed the body of a dead child which she had prematurely (and without any fault of her in that particular) brought into the world in that imperfect state, which, upon inspection, it was quite apparent could not sustain for a single moment animal life, as contradistinguished from *uterine ;*a construction, I am sure, with due deference to those who differ from me, the Legislature never contemplated to be given to the act.

I therefore think that there should he a new trial.

Haii Judge,

*dissentienle.*— The indictment states, that the Defendant did bring forth the said child, &c. which if born alive would be a bastard, &c. and that she as soon as the said child was born, concealed it by placing *355it under a crib. It is not stated whether the child was horn alive or not, and the Judge charged the Jury, that it was not a material enquiry whether the child was born alive or not.

It is alleged on behalf of the Defendant, that the facts of which she has been found guilty, do not amount to au offence under the act of 1818, *eh.*985, and that of course no judgment can be rendered against her.

The act declares, that if any woman be delivered of issue of her body, which being born alive, would be a bastard, &c. and endeavors privately, either by drowning or secret burying, or *by any other*way, &c. sojto conceal the *death*thereof, as that it may not come to light whether it were born alive or not, hut be concealed, in every such case, *be.*

It is *argued that before*the death can be proved to be concealed, life must be proved expressly to have existed. It seems to me otherwise. The act does not mean by the term *death,*the *act of*dying, the transition *from life to death;*by *concealment of the death,*is meant *a concealment of the lifeless body.*Issue of the body,is itself proof irresistible that life.accompanied and actuated it tip to the stage of maturity in which we behold it a corpse; is proof that life existed, but has been taken away ; in other words, it is proof of death, and concealment of the body, may be, or may not be a concealment, of the death.

If the fact was established that the issue was born alive, and was destroyed by concealment beneath the crib, &c. it would be a felony, and come within the proviso in the 4th section of the act. This act was made for the purpose of punishing women for concealing their issue, without imputing to them the crime of murdering them. I think judgment ought to he pronounced for the state.

JjJDGMRXT REVERSED.