
    Boyles against The Commonwealth.
    In Error.
    
      Sarah Boyles was tried in the Court of Oyer and Terminer of Indiana county, on an indictment containing two counts. The first charged her with the murder of her bastard child. The second, with endeavouring to conceal the death of the child. On the first count the jury acquitted her. The part of the second, which is material to this case, ran thus, “ which same infant so being brought forth alive, was, “ by the laws of this Commonwealth, a bastard; and that the “ said Sarah Boyles, afterwards, to wit, the same day and “ year, aforesaid, (the said female infant, having, on the day “ and year last aforesaid, at the township and county afore- “ said, died) did endeavour, privately, to conceal the death oj “ the said female infant, so that it might not come to light, “ whether the said female infant was born dead or alive, or “ whether the said female infant was murdered or not, contra- “ ry to the form of the act of general assembly.”
    Upon an indictment for concealing the death of a bastard child, if the offence ho charged thus, “the said infant having, on the day and year, &c. died, (the mother) did endeavour, privately, to conceal the death of the said infant;” this is a sufficient averment of the death of the child.
    In such an indictment it is not necessary to set forth in what manner, or by what arts, the mother endeavoured to conceal the death of the infant.
    • Upon an indictmentfor concealing the death of a bastard child, the jury found the prisoner tC guittyof the concealment in manner ami form as she stands indicted.”
    The verdict ivas held to be bad, in consequence of the omission to find the bastardy of the child.
    
      Upon this count the jury found the prisoner “guilty of the “ concealment in manner and form as she stands indicted.” Her counsel then moved for a new trial, and also in arrest of judgment; but, after argument, both motions were overruled, and the record was removed by writ of error to this Court, where the following errors were assigned.
    1. That the death of the child is not laid in the second count directly, but merely by way of recital.
    
    
      2. That the facts necessary to constitute the offence in the second count, are not specially set forth.
    3. That the, verdict is special, and does not find enough to admit of judgment being entered upon it.
    With respect to the first point, Forward and Kelly for the plaintiff in error, contended, that the death of the infant, was a material ingredient in the offence, for if it had been born dead, the concealment of that fact, would not have been planished under the act of assembly. Nothing can be taken by intendment, to supply the.want of certainty in an indictment. Hawk. b. 2. c. 25. s. 60. 1 Salk. 371. The omission, therefore, of a direct allegation of a material fact', is fatal to this indictment.
    
      2. As the facts on which the charge was founded were not set out, the prisoner was left in the dark as to what was to be proved against her, and could not come prepared to shew her innocence. This is opposed by every principle of common justice as well as of law. 2 Hale, 170, 171. Hawk. b. 2. c. 25. s. 57. Stubbs, c. c. c. 146, 147.
    
      3. The verdict was special. It cannot, therefore, be amended, nor can the Court infer any thing which is not directly found. Every fact, material to the issue, must appear. Finding part of the issue will not do ; nor is it sufficient, even if the jury find evidence or circumstances from which the Court may fairly infer the fact. Now, the bastardy of the infant is essential to the offence laid in the indictment, and this all-important fact is not found. It follows, that the verdict cannot stand. To this point, Shelley v. Alsop,
      
       7 Bac. Ab. 6. (Wilson). Rex v. Hayes,
      
       were cited.
    
      Reed, for the commonwealth,
    did not deny that the facts constituting the crime must be.positively laid, but insisted, that the offence intended to be punished was the concealment; death of the child did not enter into it; it was a preliminary circumstance, on which the offence was founded, but no part of the offence itself. But admitting it to be material, the allegation of death, is ^sufficiently direct. It is stated, that the child having died, the mother endeavoured to conceal the death. Here is an express assertion of a positive fact, to wit, the death, and an averment of what followed that fact, to wit, the attempt to conceal. The use of the compound participle does not weaken the assertion. Allegations of the same kind have frequently been held good. 3 Bac. 102. Rex v. Moor.
      Regina v. Goddard.
    
    2. The indictment gave the prisoner sufficient notice of the nature of the crime imputed to her, to enable her to disprove it, if she could; it was not necessary to set out the manner in which the offence was committed.
    3. The verdict found every thing that it was necessary for it to find. “ Guilty of the concealment in manner and form “ as she stands indicted.’’’ This refers to all that was Stated in the indictment, and covers the bringing forth of a. living female bastard child. In Sharff v. The Commonwealth, upon an indictment for writing and publishing a libel, a verdict of “ guilty of writing and publishing a bill of scandalf was declared to be bad, because, it could not be fixed upon the offence charged ; but if the jury had used the definite, instead of the indefinite article ; if they had found the defendant guilty of the bill of scandal) the verdict would have been considered as referring to the indictment, and the Court would have sustained it.
    
      
      
        Yelv. 77.
      
    
    
      
       2 Ld. Ray. 1521.
    
    
      
      
         2 Mod. 129.
    
    
      
      
         2 Ld. Ray. 920.
    
    
      
       2 Binn. 514.
    
   Tilghman C. J.

The plaintiff in error was indicted and convicted in Indiana county, for attempting to conceal the death of her bastard child. The indictment contained two counts. 1st. For murder. 2d. For endeavouring to conceal the death of the child. The jury acquitted her of the murder, but found her “ guilty of the concealment in manner and form as she stands indictedR Three errors have been assigned. 1st. That the death of the child is not laid directly) but only by way of recital. 2. That the facts necessary tb constitute the offence in the second count are not set forth. 9. That the verdict is imperfect.

1. The indictment sets forth, that Sarah Boyles was with child of and pregnant with a living female infant; that she brought forth the said infant from her body, secretly and pri*vately, and that the said infant was a bastard, and that the said Sarah, the said infant having on the day and year, &c. died, “ did endeavour, privately, to conceal the death of the said “infant.” Here is no recital. Taking the sentence altogether, the averment of death is positive. The child having died, the mother endeavoured to conceal the death. I cannot entertain a doubt concerning the meaning of the expressions.

2. The act on which the second count of the declaration is founded (22d April, 1794,) enacts, “ that if any woman shall “ endeavour privately, either by herself, or by the procure- “ ment of others, to conceal the death of any issue of her “body, male or female, which, if it were born alive,'would “ by the law be a bastard, so that it cannot Come to light, “ whether it were born dead or alive, or whether it were mur- “ dered or not, every such mother being convicted, &c. &c.” To constitute this offence, the child must be a bastard, and there must be an endeavour to conceal its death. Both these facts are set forth; but it is objected, that it should also be set forth, in what manner or by what arts, the mother endeavoured to conceal the death, in order that she may know precisely what is intended to be proved against her. I see. no reason for this. The offence is charged exactly as it is described in the law; and as for notice, it is enough that she knows she must come prepared to shew, that she did not endeavour to conceal the death of the child. This may be done by any positive act of her own, inconsistent with an intent to conceal. This law has been twenty years in force, and there have been many prosecutions and convictions under it. The present indictment is in'the usual form, to which I have never before heard this objection, nor do I think it founded on any good reason.

3. As to the verdict, although it may be conjectured, that the jury meant to find the prisoner guilty of the second count generally, yet they have hardly said enough to authorise us to speak positively as to their meaning. It is to be regretted that the verdict was taken in so imperfect a form. The jury should have been asked, whether they intended guilty generally. They have said guilty of the concealment in manntft and form, Ssc. By the by, it was not concealment, but an endeavour to conceal, which constituted the offence, and was so laid in the indictment. But passing over this, as too minute a criticism, and granting that every thing relative to concealment is covered under the “ manner and form, Ssfc.” which is part of the verdict, still there is another essential fact, not connected with concealment, and that is bastardy; for unless the child was a bastard, there was no offence. Now I do not feel myself altogether justified in affirming, that guilty of concealment in manner andform, Sic. includes the circumstance of bastardy. If such was the intent of the jury, the Court, who received the verdict, should have recorded it in such a manner as to leave no doubt. As it stands, it does not warrant the judgment which has been entered. The judgment must be reversed.

Yeates J. absent.

Brackenridge J. concurred.

Judgment reversed.  