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selling to a person eight hundred weight of gum, at the price of seven pounds per hundred weight, falsely affirming that the gum was gum seneca, and that it was worth seven pounds per hundred weight, whereas it was not gum seneca, and was not worth more than 31. &c., the indictment was quashed. Lewis's case, Sayer, 205.

So where the party acompanies his assertion with an apparent [ *342 ] *token of no more value than his own assertion. Thus, where an indictment at common law charged that Lara, deceitfully intending, by crafty means and devices, to obtain possession of divers lottery tickets, the property of A., pretended that he wanted to purchase them for a valuable consideration, and delivered to A., a fictitious order for payment of money subscribed by him (Lara) &c., purporting to be a draft upon his banker for the amount, which he knew he had no authority to do, and that it would not be paid; but which he falsely pretended to be a good order, and that he had money in the banker's hands, and that it would be paid, by virtue of which he obtained the tickets, and defrauded the prosecutor of the value; judgment was arrested, on the ground that the defendant was not charged with having used any false token to accomplish the deceit, for the banker's check drawn by himself entitled him to no more credit than his bare assertion that the money would be paid. Lara's case, 2 East, P. C. 819; 6 T. R. 565; 2 Leach, 652. But such an offence is punishable as a false pretence under the statute. Vide post, title False Pretences. So where the defendant, a brewer, was indicted for sending to a publican so many vessels of ale, marked as containing such a measure, and writing a letter assuring him that they did contain such a measure, when, in fact, they did not contain such measure, but so much less, &c., the indictinent was quashed on motion, as containing no criminal charge. Wilders' case, cited 2 Burr. 1128; 2 East, P. C. 819. Upon the same principle, where a miller was indicted for detaining corn sent to him to be ground, the indictment was quashed, it being merely a private injury, for which an action would lie. Channell's case, 2 Str. 793; 1 Sess. Ca. 366; 2 East, P. C. 818. So, selling sixteen gallons of ale as eighteen-Lord Mansfield said, "it amounts only to an unfair dealing, and an imposition on this particular man, from which he could not have suffered but for his own carelessness in not measuring the liquor when he received it; whereas fraud, to be the object of a criminal prosecution, must be of that kind, which in its nature is calculated to defraud numbers, as false weights and measures, false tokens, or where there is a conspiracy." Wheatly's case, 2 Burr. 1125; 1 W. Bl. 273; 2 East, P. C. 818. Where a miller was charged with receiving good barley, and delivering meal in return different from the produce of the barley, and musty, &c. this was held not to be an indictable offence. Lord Ellenborough said, that if the case had been, that the miller had been owner of a soke mill, to which the inhabitants of the vicinage were bound to resort, in order to get their corn ground, and that he, abusing the confidence of his situation, had made it a color for practising a fraud, this might have presented a different aspect; but as it then stood, it seemed to be no more than the case of a common tradesman, who was guilty of a fraud in a matter of trade or dealing, such as was adverted to in

agreed upon, it has been held to be a cheat for which he may be indicted. Hill v. State, 1 Yerger, 76.

Wheatly's case, (supra) and the other cases, as not being indictable Haynes's case, 4 M. & S. 214; vide Wood's case, 1 Sess. Ca. 217; 2 Russell, 296 (1). *The indictment stated that the defendant came to M. in the [*343] name of J., to borrow 5l., on which M. lent her the 51., ubi revera she never had any authority from J. to borrow the money. The defendant being convicted, on motion in arrest of judgment, the whole Court thought this not an indictable offence. Holt, C. J., put the following case:-A young man seemingly of age, came to a tradesman to buy some commodities, who asked him if he was of age, and he told him he was, upon which he let him have the goods, and upon an action, he pleaded infra ætatem, and was found to be under age half a year; and afterwards the tradesman brought an action upon the case against him for a cheat; but after a verdict for the plaintiff, judgment was arrested. Powell, J., said, if a woman pretending herself to be with child, does with others conspire to get money, and for that purpose goes to several young men, and says to each that she is with child by him, and that if he will not give her so much money, she will lay the bastard to him, and by these means gets money of them, this is indictable. Holt, C. J., added, "I agree it is so when she goes to several, but not to one particular person." Glanvill's case, Holt, 354. From the last observation of Holt, C. J., it appears that Powell, J., was speaking of an indictment for cheating, and not, as might be supposed, from using the words, "does with others conspire," of an indictment for conspiracy.


The offence of child-stealing is now provided against by the 9 G. 4, c. 31, s. 21, which enacts, "if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such intent as aforesaid, receive or harbor any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as hereinbefore mentioned, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned with or without hard labor in the common gaol or House of Correction, for any term not exceeding two years; and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment. Provided always, that no person, who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting pos

(1) People v. Babcock, 7 Johns. 201. Commonwealth v. Warren, 6 Mass. 72. People v. Stone, 9 Wend. 182.

session of *such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof."

To support an indictment under this statute, the prosecutor must prove -1. The leading or taking away, decoying or enticing away of the child, either by force or fraud, as alleged in the indictment. Where the child is not produced as a witness, or is of such tender years as to be unable to give evidence, the taking or decoying, &c. must be proved by the other circumstances of the case. 2. The age of the child. It must be proved that the child is not more than ten years of age; but the precise age mentioned in the indictment is not material. 3. The intent must be proved as laid, and will in general be gathered from all the circumstances of the case. An intent to deprive the parents, &c. of the lawful care or charge of the child may be inferred, from the secret manner in which it was taken away. As to the "persons having the lawful care or charge of the child," vide title, Abduction, ante, p. 240.


The offence of concealing the birth of a child was first provided against by statute 21 Jac. 1, c. 27, which was repealed by the 43 Geo. 3, c. 58. The latter statute was also repealed by the 9 Geo. 4, c. 31, which contains the following clause, (s. 14.)" that if any woman shall be delivered of a child, and shall, by secret burying, or otherwise disposing of the dead body of the said child, endeavor to conceal the birth thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or without hard labor, in the common gaol or house of correction, for any term not exceeding two years; and it shall not be necessary to prove whether the child died before, at, or after its birth; provided always, that if any woman tried for the murder of her child shall be acquitted thereof, it shall be lawful for the jury, by whose verdict she shall be acquitted, to find in case it shall so appear in evidence, that she was delivered, and that she did, by secret burying or otherwise disposing of the dead body of such child, endeavor to conceal the birth thereof; and thereupon the court may pass such sentence, as if she had been convicted upon an indictment. for the concealment of the birth" (1).

Upon a prosecution on this statute, the prosecutor must prove; 1, the birth of the child; 2, the secret burying, or other disposal of the dead body; and 3, the endeavor to conceal the birth. In general, the evidence to prove the first points will also tend to establish the last.

In defence, the prisoner may prove any circumstances negativing the endeavor to conceal, as that she called for help or confessed herself with child; and upon the same principle evidence was allowed (under the repealed statute 21 Jac. 1, c. 27,) of the mother's having made provision for the birth, as a circumstance to show that she did not intend to conceal it. [*345] 1 East, P. C. 228. A disclosure to an accessary was held to take the case out of the stat. 21 Jac. 1. Jane Peat was indicted for the murder of her bastard child, and Margaret Peat, her mother, for being

(1) See Penn. v. M'Kee, Addis. 1. Boyles v. The Comm., 2 S. & R. 50.

present, aiding and abetting. It appeared that Jane Peat was heard by persons in an adjoining room to call her mother. Heath, J., ruled, that if any person was present, though privy to the guilt, the case was not within the statute. Peat's case, 1 East, P. C. 229. The prisoner was indicted for the murder of her bastard child, and it was proved that she had thrown the child down the privy. The learned judge told the jury, that the act of throwing the child down the privy was evidence of an endeavor to conceal the birth, within the 43 Geo. 3, c. 58, s. 3, (now repealed,) and the prisoner being convicted of the endeavor to conceal, the judges held that the conviction was right. Cornwall's case, Russ. and Ry. 336 (a). Where the dead body of a new born child was found amongst the feathers of a bed, and there was no evidence showing by whom it was put there, and it appeared that the mother had sent for a surgeon, and prepared clothes, the judge, on an indictment against the mother for endeav oring to conceal the birth, directed an acquittal. Higley's case, 4 C. and P. 366 (b).

Frances Douglas and one Robert Hall, were indicted for the murder of a female child, of which they were acquitted; whereupon the jury were desired to inquire, whether the female was guilty of endeavoring to conceal the birth. The prisoners had been living together for some time, and in the night, or rather about four in the morning, she was delivered of the child, in the presence of the male prisoner, who was the father of it, and who, with his two sons, aged fourteen and ten, all slept on the same pallet with her, up four pair of stairs. The male prisoner very soon afterwards put the child (which had not been separated from the after birth,) into a pan, carried it down stairs into the cellar, and threw the whole into the privy, the female prisoner remaining in bed up stairs. She was proved to have said she knew it was to be done. The fact of her being with child was, some time before her delivery, known by her mother, who lived at some distance, and was apparent to other women. No female was present at the delivery; one had been sent for at the commencement of the labor, about twelve at night, but was so ill she could not attend. There were no clothes prepared, or other provision made, but the parties were in a state of the most abject poverty and destitution. For the female prisoner, it was contended, on the authority of Peat's case, and Higley's case supra, that she could not, under these circumstances, be convicted of concealment; but it being doubted whether these cases would be now considered law, it was agreed that the opinion of the jury should be taken upon the fact, and if it should be adverse to the prisoner that the sentence should be respited, and the point reserved. The jury found her guilty of endeavoring to conceal the birth.

The questions for the opinion of the judges were, 1st, Whether there was evidence to convict the prisoner as a principal? 2dly, Whether, in point of law, the conviction was good? The case was *argued before [*346] all the judges (except Park, J.,) who were of opinion, that the communication made to other persons was only evidence, but no bar, and that the conviction was good; but they recommended a pardon. Douglas's case, 1 Moo. C. C. 480 (c); 7 C. and P. 644 (d), S. C.

Evidence was given that the prisoner denied her pregnancy, and also,

(a) 1 Eng. C. C. 336.

(b) Eng. Com. Law Rep. xix. 421. (e) 2 Eng. C. C. 480.
(d) Eng. Com. L. Rep. xxxii. 670.

after the birth of the child, denied that also, but she afterwards confessed to a surgeon that she had borne a child. The body of the child was, on the same day, found among the soil in the privy. Patteson, J., held it to be essential to the commission of the offence, that the prisoner should have done some act of disposal of the body, after the child was dead; therefore, if she had gone to the privy for another purpose, and the child came from her unawares, and fell into the soil and was suffocated, she must be acquitted of the charge, notwithstanding her denial of the birth of the child. The prisoner was acquitted. Turner's case, 8 C. and P. 755 (a).

Where a prisoner was stopped going across a yard, in the direction of a privy, with a bundle, which, on examination, was found to be a cloth sewed up, containing the body of a child; it was held by Gurney, B., that the prisoner could not be convicted, the offence not having been completed. Snell's case, 2 Moo, and R. 44.

Douglas's case, supra, shows that a woman may be convicted, under the statute, where the body of the child is buried or disposed of by an accomplice, who acts as her agent in the matter. It seems, also, from the same case, that although by the 14th section, the woman only can be indicted for concealing the birth, an accomplice, who has counselled or abetted the offence, is indictable under the s. 31, of the same statute, which enacts, that " every person who shall counsel, aid, or abet the commission of any misdemeanor, punishable under this act, shall be liable to be proceeded against and punished as a principal offender."

An indictment for endeavoring to conceal the birth of a child must show that the child was dead, but whether it died before or after the birth need not be proved. Perkins's case, 1 Lewin, C. C. 44. So it was said by Bayley, J., that he should rule that the statute 43 Geo. 3, c. 58, extended to all cases, whether it was proved that the child was still-born, or left the matter in doubt. Southern's case, 1 Burn, 335, 24th ed. Now by the 9 Geo. 4, c. 31, it is expressly provided, that it shall not be necessary to prove whether the child died before or after its birth, see ante, p. 344.

Upon an indictment for the murder of the child, the prisoner, on failure of the proof as to the murder, may be convicted by the statute of endeavoring to conceal the birth. Where the bill for murder was not found by the grand jury, and the prisoner was tried for murder on the coroner's inquisition, it was held that she might be found guilty of the concealment, the words of the stat. 43 Geo. 3, being, that "it shall be lawful for the jury, by whose verdict any person charged with such murder shall be acquitted, to find," and the judges holding that the coroner's inquisition was a charge, [*347] so *as to justify the finding of the concealment. Maynard's case, Russ. and Ry. 240 (b); Cole's case, 2 Leach, 1095; 3 Campb. 371. It may be observed, that the word charge does not occur in the statute 9 Geo. 4, c. 31.

As to costs, see ante, p. 110.

(a) Eng. Com. L. Rep. xxxiv. 622. (b) 1 Eng. C. C. 240.


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