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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.
CONCEALING BIRTH OF CHILD.
The offence of concealing the birth of a child was first provided against by statute 21 Jac. 1, c. 27, which was repcaled 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 The latter statute was also repealed by the 9 Geo. 4, c. 31, which contains the following clause, (s. 14.)—“that if any woman shall be delivered of a child, and shall, by secret burying, or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. 7. M'Kee, Addis. 1. Boyles o. 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 endeave oring to conceal the birth, directed an acquittal. Higley's case, 4 C. and P. 366 (6)
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.
(6) Eng. Com. Law Rep. xix. 421. (c) 2 Eng. C. C. 480.
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 sell 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 ğrand 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 (6); 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 (6) 1 Eng. C. C. 240.
Proof of counterfeiting the gold and silver
importing counterfeit coin
- 347 Proof of having counterfeit coin in posProof of the counterfeiting
355 Proof that the coin is counterfeit - 348 Proof of counterfeiting, &c. the copper Proof of coloring counterfeit coin or met
356 al—and filing, and altering legal Proof of counterfeiting foreign coin 356 coin
349 Proof of uttering foreign counterfeit coin 357 Proof of impairing or diminishing the coin 350 Proof of having in possession five or more Proof of uttering counterfeit gold or silver
pieces of foreign counterfeit coin 358 coin
351 Proof of offences with regard to coining Proof of the simple uttering
- 359 Proof of the compound offence of ut. Venue
- 361 tering, having other counterfeit Traversing
- 361 coin in possession 352 Accessaries
- 361 Proof of buying or selling counterfeit coin Interpretation clause
- 361 for less than its denomination
The laws against coining, so far as they relate to the current coin of the realm, were consolidated by the 2 Wm. 4, c. 34, by which the former statutes were repealed, and new provisions substituted.
Proof of counterfeiting the gold or silver coin.] By the 2 Wm. 4, c. 34, s. 3, " if any person shall falsely make or counterfeit any coin, resembling or apparently intended to resemble or pass for any of the king's current gold or silver coin, every such offender shall, in England and Ireland, be guilty of felony, and in Scotland, of a high crime and offence, and, being convicted thereof, shall be liable, *at the discretion of the [ *348 ] court, to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned for any term not exceeding four years ; and every such offence shall be deemed to be complete, although the coin so made or counterfeited shall not be in a fit state to be uttered, or the counterfeiting thereof shall not be finished or perfected."
By s. 19," where any person shall be convicted of any offence under this act, for which imprisonment may be awarded, it shall be lawful for the court to sentence the offender to be imprisoned, with or without hard labor in the common gaol or house of correction, and also to direct that the offender shall be kept in solitary confinement for the whole, or any portion or portions of such imprisonment, as to the court, in its discretion, shall seem meet.”
Now, by the 7 Wm. 4 and 1 Vict. c. 90, s. 5, it its enacted, that "it shall not be lawful for any court to direct that any offender shall be kept in solitary confinement for any longer periods than one month at a time, or than three months in the space of a year.”
In order to establish the charge of counterfeiting, the prosecutor must prove; 1st, the act of counterfeiting; and 2d, that the coin counterfeited resembled, or was apparently intended to resemble or pass for the king's current gold or silver coin.
Counterfeiting the gold or silver coin-proof of the counterfeiting.) In order to prove that the prisoner was guilty of counterfeiting, it is not necessary to show that he was detected in the act, but presumptive evidence, as in other cases, will be sufficient, viz. that false coin was found in his possession, and that there were coining tools discovered in his house, &c. But the evidence must be such as to lead to a plain implication of guilt. Two women were indicted for coloring a shilling and a sixpence, and the third prisoner, a man, for counselling them, &c. It appeared that he had visited them once or twice a week; that the rattling of copper money had been heard whilst he was with them, that on one occasion he was seen counting something after he came out; that he resisted being stopped, and jumped over a wall to escape; and that there were found upon him a bad three shilling piece, five bad shillings, and five bad sixpences. Upon a case reserved, the judges thought this evidence too slight to support a conviction. Isaac's case, 1 Russell, 62.
Counterfeiting the gold or silver coin-proof that the coin is counterfeited.] It must be proved both that the coin in question is counterfeit, and that it resembles, or is apparently intended to resemble the king's current gold or silver coin. The fact that the coin counterfeited or resembled, is the king's current gold or silver, may be proved by evidence of common usage or reputation. i Hale, P. C. 213.
The proof that the coin in question is in fact false, is provided for by the 17th sect. of the 2 Wm. 4, c. 34, which enacts," that where, upon the trial of any person charged with any offence against the act, it shall [ *349 ] be necessary to prove that any coin produced *in evidence against such person is false or counterfeit, it shall not be necessary to prove the same to be false and counterfeit by the evidence of any moneyer, or other officer of his majesty's mint, but it shall be sufficient to prove the same to be false or counterfeit by the evidence of any other credible witness.”
In proving the coin to be counterfeit, two questions may arise ; first, whether it is in such a state of completion as to be properly described as false and counterfeit coin ; and secondly, whether it does resemble or is apparently intended to resemble or pass for the king's current gold or silver coin.
With regard to the first question, it is enacted by the 2 Wm. 4, c. 34, s. 3, that the offence of counterfeiting shall be deemed to be complete, although the coin so made or counterfeited shall not be in fit state to be uttered, or the counterfeiting thereof shall not be finished or perfected. Notwithstanding this provision, there must still, it is apprehended, be a substantial making or counterfeiting proved, and that it will not be sufficient merely to show that steps have been taken towards a counterfeiting. The clause appears to have been intended to provide against such cases as that of Harris, where the metal requiring a process of beating, filing, and immersing in aqua fortis, to render the coin passable, the judges held that the prisoner could not be convicted of counterfeiting. Harris's case, 1 Leach, 135. See also Varley's case, 1 Leach, 76; 2 Wm. Black. 682 ; 1 East, P. C. 164.
The question whether the coin alleged to be counterfeit does, in fact, resemble or is apparently intended to resemble or pass for the king's current gold or silver coin, is one of fact for the jury, in deciding which they must be governed by the state of the coinage at the time (1). Thus,
(1) Case of Quin and al., 6 Rogers' Rec. 63.