
    ALLEGHENY COUNTY,
    September Term, 1791.
    Pennsylvania v. Susanna M'Kee.
    31st May, 1718.
    1 St. L. 35.
    
      SUSANNA M’KEE, a widow, was tried for the murder of her bastard child. The infant was found dead in the Monongahela river, on the 15th August last, with a stone to it, its head bruised, and marks of violence. This woman was suspected and examined : at first she denied, but afterwards confessed, having had a child.— She said she had buried her child, it having been dead born. Afterwards owned she had taken it up, and thrown it in the river. One witness for the prisoner (a man suspected as the father of her child) proved, that, three months before its birth, she applied to him, when he was going out of the neighbourhood, to enquire for a nurse, and send to her, as she did not want the child to be in the neighbourhood ; and that she afterwards sent to know, whether he had found one. He never enquired.
    
      Brackenridge and Young for the prisoner,
    read act of September, 1786. 2 Hawk. 438. 2 Hale, 289.
   President. The 8th section of “the act for the advancement of justice, and more certain administration thereof,” passed in 1718, declares, that if any woman delivered of a bastard child “endeavour privately, by drowning or secret burying thereof, or any other way, so to conceal the death thereof, as that it may not come to light, whether it were born alive or not; except such mother can prove by one witness, that such child was born dead, she shall suffer death, as in the case of murder thus making concealment of its death evidence of such dead child being born alive, and killed by its mother. This law is borrowed from England; and there, as it favoured of severity, it became usual, in trials for this offence, to require some sort of presumptive evidence, that the child was born alive, before the other constrained presumption, that the child whose death was concealed, was therefore killed by the mother, was admitted to convict her on this statute. And this practice of the English courts was expressly established as the law of Pennsylvania, by “the act for amending,” and “ the act to reform the penal laws of this state,” passed in 1786, and in 1790, which declared that this concealment shall not be sufficient evidence, to convict the mother, without probable presumptive proof that the child was born alive.

4 Comm. 198.

15 Sept. 1786 § 9.

5 April, 1750 § 6.

3 St. L. 804.

2 Hale, P. C. 289.

2 Hale 289. 2 Hawk. 438 Kel. 32-3.

To support this indictment, therefore, there must be, first, positive evidence of the concealment, then probable evidence of the birth alive. Or, if there be no evidence of concealment, it may be left to the jury on the circumstances, if they warrant it, to say, whether she murdered the child, by wounds, &c. or not.

Concealment, as the negative of publication, admits only of such proof, as other negatives. But here special acts of concealment, as private burying, or drowning are pointed out by the law, and proved by the testimony. But, as concealment of death may be occasioned by accident, without any design, unless there be a concealment of pregnancy, labour, &c. or some other circumstances of concealment, there being no person present at the birth is not sufficient, to convict the mother.

Concealment is sufficiently proved. The circumstance of the nurse, three months before, and at a distance from the neighbourhood, considered as countervailing it, seems very weak. There is no discovery or notice to the neighbours; no call on any of them. She certainly intended to conceal. That intent the law views in a capital light; and reasonable suspicion will not view it as innocent.

Presumptive evidence of the birth alive is sufficient. Want of hair, nails, &c. or other circumstances of a premature birth, must be evidence in favour of the prisoner. Circumstances of maturity, marks of violence, &c. are evidence against her. You will consider, whether the marks of violence were inflicted of purpose on the child, or by accident to the dead body in the river. The presumption ought to be such, as, together With the strength of the temptation, and the circumstances of the mind and conduct of the prisoner, will induce you to believe, that the child was born alive, and killed, by the act, procurement, or wilful neglect of the mother whose case is now before you.

NOTE-The 8th fection of "the act for the advancement of justice," &c. on which this indictment was founded, is copied from the English statute, 21 Ja. 1. c. 27. At a goal delivery for Newgate, 16 Car. 2, Anne Davis was tried on this statute, for the murder of her bastard child, and then indictment not being special, as the statute is, for concealing the death; but" that the brought sorth a living male child, which, being born alive, was a bastard," and then stating, in the ordinary form, that she murdered it, concluded "against the peace,"&c. without saying against the form of the statute ; the judges doubted whether the indictment ought not to have been special. Examining the precedents they found a special indictment in 2 Car. 1, but all after 4, 5, and 6 Car. 1, framed as that before them. And they were told, that this form was adopted, by the advice of the judges at that time ; the statute making the mother's concealment of the death of her bastard child, punishable as murder, which was an offence at common law. This enquiry and information satisfying the court, they proceeded on the indictment. And this form of indicment for murdering a bastard child, comprehending also an assertion of secret birth and killing, continued to be considered, as an established specific indictment for concealing the death of a bastard child, the offence declared by the statute to be punishable as murder. If the indictment was in this form, and evidence given or concealment, the mother must prove by one witness that the child was born dead. If the indicment state not that the child was a ballard and born, alive, she is not put to this proof. The same form was adopted in Pennsylvania, as a specific indictment for the same offence, under our act of 1718; and continued to be so under our act of 1786 and of 1790, which, besides concealment of death, required additional presumptive evidence of birth alive.

1 St. L. 135.

Kel. 32.

2 Hale, 288-9.

The jury found a verdict, not guilty.

22 Apr. 1794 3 St. L. 599.

600, § 2, 4.

606, § 17.

§ 18.

2 St. L. 804.

3 St. L. 599, 606.

1 St. L. 135.

In 1794, the assembly of Pennsylvania, by “the act for the better prevention of crimes, and for abolishing the punishment of death in certain cases,” distinguished murder into two degrees, and reserving the punishment of death for murder in the first degree, changed the punishment of murder in the second degree into confinement for a period not less than five years. And, with respect to the offence of concealing the death of a bastard child, formerly punished, as murder, with death, the 17th section of this act declares, that if any woman endeavour privately to conceal the death of her bastard child, so that it may not come to light whether it was born dead or alive, or whether it was murdered or not, she shall be punished by confinement for a period not exceeding five years, or by fine and imprisonment, at the discretion of the court ; and further provides, that if, together with this offence, the indictment charge the woman with the murder of her bastard child, the jury may acquit or convict her of both offences or either. The 18 section then declares, that the concealment of the death of any such child shall not be conclusive evidence, to convict the mother of the murder of her child, unless the circumstances attending it be such, as shall satisfy the mind of the jury, that she did wilfully and maliciously destroy and take away the life of such child.”

“The acts of 1786 and 1790,” declared, that concealment of the death was not sufficient to convict, without presumptive proof of birth alive. And this act of 1794, renders evidence both of birth alive and concealment of death, insufficient to convict; unless there be circumstances of wilful murder. This is an important alteration of the act of 1718, and in fact, seems altogether to destroy the force of the 8th section of that law, except as to the form of the indictment under it. For, though that section had never existed, if a mother had been indicted for the murder of her bastard child, and proof had been made, that she concealed its death, and probable presumptive proof, that the child was born alive, and if the circumstances satisfied the mind of the jury, that she did wilfully and maliciously take away the life of such child (and on an indictment for murder at common law, all this evidence is admissible) the jury must have convicted her of murder. If, therefore, on an indictment at common law for murder, before the act of 1718, such evidence as the act of 1794 requires had been sufficient to convict, the duty of the jury to convict, on an indictment for the murder of a bastard child, seems now to arise, not out of the 8th section of the act of 1718, but out of the common law ; and a mother, indicted for the murder of her bastard child, seems to be in a situation neither worse nor better, when indicted under this section of the act of 1718, or for murder at common law. If the 8th section of the act of 1718, restrained as it is by the 18th section of the act of 1794, answer no other purpose than the common law, its use ceases, and it might be repealed. If, therefore, it had been the intention of the act of 1794, to make concealing the birth and death of a bastard child a specific offence, distinct from murder, and not also leave it, as it was before, a component part of the offence declared by the act of 1718, and stated in the indictment as murder, the plain way to accomplish this intention was, first, to repeal the 8th section of the act of 1718, and then declare the offence and punishment of a mother concealing the birth and death of her bastard child. But, instead of this, the act of 1794 first changes the punishment of a mother concealing the birth and death of her bastard child (as it does of murder in the second degree), from death to confinement; then qualifies the 8th section of the act of 1718, by declaring certain circumstances necessary to make concealment conclusive evidence of murder, and repeals no law not repugnant to, or supplied by itself. So qualified, the 8th section of the act of 1718 is recognized by the act of 1794; and the established form of indictment under the act of 1718 and the subsequent acts is also recognised, and may be accompanied with a special count, for concealing the birth and death.

3 St. L. 606, § 19.

3 St. L. 606, § 17.

2 Hale, P. C. 288-9.

Whether, since the act of 1794, there be much use in retaining the form of indictment established under the act of 1718, may, as I have stated, appear doubtful; and it may seem, that an indictment for murder at common law may answer all the purposes of this form of indictment on this statute. But as the act of 1794 seems to sanction this form of indictment; and there may be conceived some force in the words “one witness,” in the act of 1718, and in the words, “conclusive evidence,” in the act of 1794; it seems adviceable, to retain this form of indictment against a mother, for the murder of her bastard child, as a notice, to prepare to encounter the evidence of concealment, by the proof of one witness, that the child was born dead.

2 Hale 289.

There may, therefore, now be three counts, in an indictment founded on the death of a bastard child:

1. A count at common law, for the murder of a child.

2. A count, in the form settled under the stat. 21 Ja. 1. and the 8th section of our act of 1718, for the murder of a bastard child, by its mother ; and,

3. A count for the concealment of the birth and death of a bastard child by its mother, specially framed, on the 17th section of the act of 1794.

I do not know that the first is necessary, as the second is so framed, as to accomplish the same purpose. On the second count, as other than a count at common law, there must be proved, First, by the act of 1718, concealment of the birth and death; Second, by the act of 1790, probable presumptive proof of the birth alive ; and Thirdly, by the act of 1794, circumstances to satisfy the mind of the jury, that the mother wilfully took away the life of her child : and then, unless she can destroy the effect of this evidence, by the proof of one witness, or circumstances equivalent, she will be convicted of murder. Or, under this count, as a count at common law, if there be no concealment proved, it may be left to the jury on the circumstances, as at common law, to enquire whether she murdered it or not. Under the third count, there is nothing more to be proved, but concealment of the birth and the death, as stated in the 17th section of the act of 1794; and, on conviction on this count, judgment is given, as prescribed by that section.

I think, therefore, indictments against a mother, on the concealment of the death of her bastard child, ought now to contain, at least, those two last counts; the count for the murder of her bastard child, as settled under the stat, 21 Ja. 1. and our act of 1718; and (for even strong circumstances of actual killing may not satisfy the jury), a count framed on the words of the 17th section of the act of 1794, for the concealment of the birth and death of her bastard child.

But if from strong circumstances of wilful and malicious taking away of life, no count of this last kind should be drawn up, and the preceeding count, for the murder of a bastard child, as settled under the statute 21 Ja. 1. and our act of 1718, should stand alone in the indictment; and the circumstances of wilful killing should not satisfy the mind of the jury, and they should not find the murder, but find specially a concealment of the birth and death in the terms, of the 17th section of the act of 1794; could judgment be given according to that section, for confinement for not more than five years ?

2 Hale, 189,-90.

Concealment of the death of a bastard child was not first declared an offence, by the act of 1794; but at the time of passing that act, and at all times before, since the act of 1718, was an offence.

The act of 1794 does not repeal the 8th section of the act of 1718, but changes the punishment (of this as of other offences) and adds a new qualification. Concealment, with other circumstances, may yet be evidence of murder; murder, like concealment without those circumstances, may yet be punished by confinement for five years; and the act of 1794 still supposes the form of indictment under the act of 1718 to be used. Under that form, concealment of death is an essential part of the evidence ; for that form was, in fact, considered as a specific indictment for the concealment of the birth and death of a bastard child ; and was notice to the mother to prepare to meet evidence of such concealment, and contained words equivalent to concealment of the birth and death.

The punishment is changed not from a less to a greater, but from a greater to a less; and there was more reason for a special notice in the indictment, that evidence of concealment was to be given, when the punishment of it was death, than now, when the punishment of it is but confinement for five years. If on an indictment in this form, the jury before the act of 1786, had found specially the concealment, in the words of the act of 1718 & of 1794, judgment of death would have been given ; if so found now, on this form of indictment settled for concealment, when the punishment of other murders is changed to confinement, may not judgment of confinement be given ?

The offence, which is found by such verdict, and which, by statute 21 Ja. 1, and our act of 1718, was punishable by death, and, by our act of 1794, punishable by confinement, is a mother’s concealment of the birth and death of her bastard child. Under the statute 21 Ja. 1, and our act of 1718, this was the settled form of indictment for this offence. When our act of 1786 and 1790 added another circumstance, probability of birth alive, it remained the form of indictment for concealment so qualified. And when the act of 1794 added further circumstances of wilful taking away of life, it yet remains a form of indictment for concealment so qualified. So that now, it is a form of indictment for a mother’s concealment (which of itself was formerly capital) of the birth and death, 1, of her bastard child; 2, of her bastard child probably born alive ; and 3, of her bastard child probably born alive and wilfully destroyed.

See 2 Hawk, 622-627 and cases there cited.

Leeser's case, Cro. Fa. 497. See Joyner’s case, Kel. 29. Holme's case Cro.Car. 376 1 Hawk. 263.

See also M‘Birnie's case, post.

There are offences compounded of an interior offence and something more ; as petit treason, burglary, murder, &c. and, though in such cases, on an indictment for the less offence, the defendant cannot be convicted of the greater; on a verdict for the greater, he may be convicted of the less, and receive sentence accordingly. On an indictment for larceny, the verdict was a playing with dice, and judgment was given for the misdemeanor. On an indictment of a single count for an assault and battery, the defendant may be convicted of the assault only. Homicide by misadventure, is an unlawful killing by accident Manslaughter is an unlawful voluntary killing without malice. Murder is an unlawful killing with malice. On an indictment for murder, the defendant may be convicted of manslaughter, or of homicide by misadventure, &c. This form of indictment is for a murder, consisting of concealment of death, and other circumstances ; may not the defendant be convicted of the concealment without the other circumstances, and receive sentence accordingly ?

This may be thought to be going a great way to support such proceeding; and no doubt the best way is to annex, to this form of indictment, a special count for concealment, in the words of the 17th section of the act of 1794. But where, because the concealment was accompanied with strong circumstances of wilful taking away of life, this has not been done ; as I am averse to the obstruction or delay of justice on mere matters of form, where there is not a manifest violation of the plain rules of law or natural justice; on a special finding, in the words of the 17th section of the act of 1794, on an indictment under the 8th section of the act of 1718, where the mother has had a full opportunity of defence, on the merits of her case, I am not convinced that judgment ought to be arrested.— Why may not judgment be given under the 17th section of the act of 1794?

At January sessions 1794, a Negroe woman was tried in Washington, on an indictment for the murder of her bastard child. The circumstances were very strong, and might reasonably have been thought sufficient, to satisfy the mind of the jury, that she did wilfully and maliciously take away the life of the child. However, the jury did not find the murder, but found the concealment of the birth and of the death.

The court gave judgment of confinement for five years.  