CHAPTER XIV
INFANTICIDE
According to the present state of English law, infanticide—murder of a new-born child—is not regarded as a specific crime, but is treated and tried by those rules of evidence which are applicable in cases of felonious homicide, but with this difference, that the law requires proof that the child was born alive. An old Statute (21 Jac. I. c. 27) made the concealment of the birth of a bastard child conclusive evidence of murder. As far as the legal estimation of the crime is concerned, it matters not whether the child was killed immediately on its entrance into the world, or within a few days afterwards. A fœtus not bigger than a man‘s finger, but having the shape of a child, is a child within the Statute (R. v. Colmer, 9 Cox, 506; R. v. Hewitt, 4 F. & F. 1101). An English judge, at a late trial, stated that if the jury were of the opinion that the prisoner had strangled her child before being wholly born, she must be acquitted of murder. The law also, on the score of humanity, presumes that every child is born dead until direct evidence to the contrary, from medical or other sources, is given. The onus of the proof of live birth, therefore, devolves on the prosecution. It may also be difficult to decide as to the maternity, and the woman accused will have to be examined as to the possibility of her recent delivery.
Here let me repeat the advice given on page 148 as to the examination of a woman. Your duty is to request the woman to allow of the necessary examination, giving her the warning which every magistrate or coroner is bound to give to any person charged with a crime, before requiring an answer to a question which may be used in evidence against her at the subsequent trial. The innocent and the guilty may alike object to an examination, but the presumption is against the party declining, if several have voluntarily submitted. A young lady committed suicide rather than submit to an examination by two medical men under an order from the coroner. The medical men were guilty of a grave indiscretion, and both they and the coroner were acting ultra vires in attempting to force a woman to obtain evidence against herself (Taylor, vol. ii. p. 431).
The decision as to recent delivery will, to a great extent, rest on the condition of the mother, and the apparent age of the child found dead. The discovery of the body of the child is not necessary to conviction, but the medical evidence as to the signs of respiration, of course, depends on the body being found and examined. In most cases of alleged infanticide tried in England, juries appear more inclined to fall back on the minor offence—concealment of birth—than to convict of the capital offence; and this appears to be the only alternative if the body cannot be found, for, as we have just said, in law every child is held to be born dead. It must of course be shown that the woman has been recently delivered. In case of failure to prove the murder of the child, the Act (24 and 25 Vict. c. 100, sec. 60) enacts that “if any woman shall be delivered of a child, every person who shall, by any secret disposition of the dead body of the said child, whether such child died before, at, or after its birth, endeavour to conceal the birth thereof, shall be guilty of a misdemeanour.” The mere avowal of the birth is not sufficient to convict her; she must be proved to have done some act of disposal of the body after the child was dead (R. v. Turner, 8 C. & P. 755).
In Scotland, concealment of pregnancy is a statutory crime, chargeable when the child born is found dead or is not found at all, and there is no proof of its having been murdered. Pregnancy, up to a period when a child might be born alive, must be proved, and the words “during the whole period of her pregnancy” do not imply that the pregnancy must have continued for the full period of nine months. All that is necessary is that there should be such proof of duration of pregnancy as made a living birth possible. If the accused can bring forward a witness to whom she communicated her pregnancy, or called for assistance at the birth, or (it is believed) can prove that the child was born dead, she is entitled to an acquittal.
It has also been said that a woman ought not to be convicted of “concealment of pregnancy,” if at the time of delivery the fœtus do not appear to have reached the seventh month of intra-uterine existence. The birth of a “child,” whether dead or alive, is essential; therefore, if the woman accused “can prove that that which she brought forth was not a ‘child,’ but an abortion, or a fœtus, which, from some accident, was in such a condition that, though there had been assistance, it could not have been in a condition to be called ‘a child,’ then the case is out of the Statute.” The Scotch Statute differs from the English on the “concealment of birth” in this, that so long as the woman makes known her pregnancy, the motive for doing so is not considered. Thus, if she make arrangements with anyone to conceal the birth, “the Statute is eluded by that very circumstance” (Alison). The Statute applies to married as well as to single women; but, in the former case, the penalty is seldom enforced unless foul play is suspected.
DEFINITION OF THE TERM “LIVE BIRTH”
IN CRIMINAL CASES
“The entire delivery of a child.” There must be an independent circulation in the child before it can be accounted alive (R. v. Enoch, 5 C. & P. 539). The entire child must be actually born into the world in a living state (R. v. Poulton, 5 C. & P. 329). But the fact of the child being still connected with the mother by the umbilical cord will not prevent the killing from being murder (R. v. Reeves, 9 C. & P. 25). To kill a child in its mother‘s womb is no murder, because the person killed must be “a reasonable creature in being, and under the King‘s peace.” But if the child be injured in the womb, and yet be born alive, and then die as a result of such injuries, it may be murder in the person who inflicted them (R. v. Senior, 1 Mood. C. C. 346).
A distinction must be drawn between medical or physiological life and legal life. A child may have breathed, as it not infrequently does, before it is completely born into the world; and this might, in a medical point of view, be considered as a live child, but it is not one legally. The entire delivery of the child is necessary in law; and “it must also be proved that the entire child has actually been born into the world in a living state, and the fact of its having breathed is not a conclusive proof thereof.” The inference unfortunately follows from this ruling, that a mother may kill her child without fear of punishment, if she do so before the entire body has slipped from her.