
    COMMONWEALTH v. MARY BROWN.
    [Charged with infanticide, and concealing the death of her bastard child.']
   After the testimony had concluded, the Recorder said, the facts which appear are these:

That the prisoner was delivered of a living child; that when accused of having been so delivered, she did not deny it; that she was not aware of her condition prior to the delivery; that the time when, or under what circumstances, the child died, are not known nor pretended to be susceptible of clear proof; no facts were in evidence which raise the presumption that the prisoner either killed her offspring, or that she was even aware of its death. As to the charge of concealment, the evidence strongly proves that if any concealment existed, it was to conceal its birth. Under the act of assembly of the 17th of April, 1794, the words of which are “ if any female shall endeavour privately, either by herself or the procurement of others, to conceal the death, &c.,” the only criminal act is, the concealment of the death. So that if the birth is concealed, and death unknown to the mother, or even suspected by her or her friends or companions, it seems under the words of the act, that the death following the concealment of the birth, is no crime.

In the case of Commonwealth v. Emenetta Clark, 2 Ashmead 111, judge King has so construed the law as to place it beyond doubt, that after the birth, the death must so be concealed as to prevent its being brought to light, whether it was born dead or alive, or whether it was murdered or not. The commonwealth has failed to establish two facts material to this case: 1st, that the child was a bastard: 2d, that the prisoner endeavoured to conceal the death of the child. The facts go strongly to show, that the child died by the usage it received from the time the mother was taken in labour, to the time the dead body was discovered. The idea of the murder of the child by its mother, is not in the least degree sustained by the evidence; that the child was bom alive is clear, and the only charge left to be considered, is whether the concealment is such as under the statute is constituted a criminal offence. It has been ably argued by Mr. Kelley 4- Mr. Cuyler, prisoner’s counsel, that the charge of concealment is only a concealment of the birth, and therefore not punishable.

It does appear to me that the position of the prisoner’s counsel is sound, and the prisoner is therefore discharged. To punish such offences in future, the legislature should explain the law referred to; as it stands in the statute book, it is almost a dead letter.  