regard to violence. In calculating the probability of the fall of the child as the cause of the death, m it is necessary to take into account n every circumstance which can affect such estimate; as place, distance, position of the mother, condition of the umbilical cord, clothing worn by the woman. At all events there is nothing in the asserted improbability of injurious effects from the fall of the child. o § 3539. In cases of this class it is a fact which must have been noticed by all practitioners, that in a great majority of instances of deliberate infanticide, and in many of accidental, the child is found in a privy ;p and where the birth is suspected to have occurred in the same place, the spot where the mother sat, and the place through which and on which the child is supposed to have fallen, the German text writers tell us must be closely examined. q Delivery may also be so rapid, although the mother is aware of being in labor, that she is unable to guard against an accident to the child. r It should be observed that the omission to loose the umbilical cord can never in itself be pronounced with certainty to have caused the death of the child; 8 although in certain cases the hemorrhage consequent upon it may have done so; and it would be unsafe to rest, for technical reasons, on this point alone, as the weight of medical authority now is, that though much depends on the condition of the child, the manner in which the Zeller, Heidelb. 1822; Feistb, p. 281; Guentner, Kindesmord, i. p. Mayenne, 1839; Friedreich, 1845, 53; Taylor, p. 481; Guy, For. Med. vol. ii. p. 437. p. 151. m Klein, Stuttgart, 1817; Klein, Beitr. zur gerichtt. Arzneiwissench, Tubingen, 1825; Henke, Abh. i. p. 63, pt. iii. No. 1; Mende, Handb. i. p. 227, iii. p. 149; Hitzig, Zeitschrift, No. 25, p. 56, 67. p 2 W. & S. Med. Jur. 165; Klein, Ann. der Gesetzgebung, xv. p. 225; Pfister, Criminal-Fælle, v. iii. No. 1. q 2 W. & S. Med. Jur. 165-175; Pfister, Crim. v. p. 601; Ann. der Staatzarneikunde, by Schneider, 1839, n Mittermaier, Archiv. vii. 633– iv. p. 174. 639. o 2 W. & S. Med. Jur. 161; Ann. d'Hygiène, 1840, No. 48, p. 331; Friedreich, Handb. p. 729; Devergie, i. p. 693; Siebenhaar, Handb. ii. p. 639; Friedreich, Centralarchiv, 1845, vol. iii. p. 441; Orfila, i. 379; Eggert, r 2 Wh. & Stil. Med. Jur. § 175. s Beck's Elements, i. p. 282; Mende, Handb. iii. p. 290; Siebenhaar, Handb. iii. p. 644; Friedreich, Handb. 736; Ann. d'Hyg. xxv. 126, and xxvi. 244; Bianchi, in Barzellotti's Méd. Lég. 481; Guentner, 49. umbilical cord was severed, and the length of the piece remaining attached to the child, yet the death cannot be positively traced to this cause. § 3540. Where the death is or may be attributed to a fall, it is proper to inspect the spot where the birth is alleged to have taken place, partly to determine the hard places on which the child is said to have fallen, and partly to ascertain the nature and amount of blood and other matter discharged by the parturient. It is indispensable to establish, with the greatest possible exactness, the time of the probable conception, as it is of importance in estimating the period of gestation; also, the health of the mother when she first felt the motions of the child, her deportment during pregnancy, whether she concealed it, and what work she performed during its continuance. Evidence should also be collected as the exact progress of the birth, the time when the labor began (often the best means of unravelling prevarication), the demeanor of the patient, the occurrences after the birth, and the duration of the travail. Whenever the accused herself suggests an explanation of the death of the child, the possibility of such explanation should be submitted to the judgment of medical men, or determined by repeated inspections, if she voluntarily submits to them. Poisoning as a form of infanticide is extremely rare. Recently, however, a woman destroyed her child, which was only one day old, with arsenic. She was tried and acquitted upon the plea of puerperal insanity, although the evidence certainly did not warrant such a verdict. t § 3541. The following observations of Mittermaier (from whose admirable treatise many of the foregoing points are drawn) are worthy of much weight: "In inquests of infanticide, where the fact of a delivery is not well established, particular indications. are found in the suspicious intercourse of an unmarried woman with a man, if followed by ailments or changes of appearance, or enlargement of the abdomen, denoting pregnancy; the sudden disappearance of these changes, the condition of her linen, or other tokens of a delivery especially if the latter is established by inspection. The greater the concealment of the pregnancy the greater the suspicions, though this concealment must have been by actual contrivance, or silence towards persons who had a right t See 2 Wh. & Stil. Med. Jur. § 176. to ask. These suspicions may be further increased by the obstinate refusal to produce the child; although it must not be overlooked, that the absence of a dead child may also be explained without accusing the mother of murder. If the corpse is discovered, it must be identified as the same child to which the accused gave birth, and scrutinized, remembering, however, that late researches have established the insufficiency of many proofs heretofore claimed as decisive. If found to bear traces of a violent death, the demeanor of the accused becomes important, and the more studiously she concealed her pregnancy, or has deprived herself of attendance at the time of delivery, or betrayed by her subsequent behavior not only the intention to conceal the delivery, but fatal designs upon the child, the more foundation is there for judicial investigation; bearing in mind, however, that the accused may not before delivery have been entirely aware of her condition, and that it is a point of controversy whether a concurrence of the three indications of concealment of pregnancy, birth without attendance, and concealment of the corpse, is necessary to afford strong evidence of infanticide." u IV. QUICKENING. § 3542. Wherever there is a difference in the grade of punishment attached to the destruction of a "quick" child, and one not yet so, or wherever the destruction of the latter is held not to be indictable, v this becomes an important subject of inquiry. To a former chapter, in which, under the stress of recent investigations, this question is elaborately examined, the reader is referred for the points to which, in a prosecution under these circumstances, it is necessary to attend. u 2 Mittermaier, Deut. St. sect. 129. 410 v See ante, § 1220. INDEX TO THE WHOLE WORK. [THE NUMERALS IN THIS INDEX REFER TO VOLUMES; THE FIGURES TO SECTIONS.] ABANDONMENT OF CRIME, when a defence, ii. 2699. ABANDONMENT OF DEPENDENTS, ii. 1011, 2508. (See MISCONDUCT IN OFFICE.) of names, how to be pleaded, i. 239. of other matters, i. 405. ABDUCTION AND KIDNAPPING. Offence at common law, ii. 1202. See ii. 2670. abduction of woman, ii. 1202. indictment must show taking to be for lucre, ii. 1202. ii. 2671. woman can be a witness, ii. 1203, 2673 d. venue, ii. 1204. all parties principals, ii. 1206. subsequent consent does not cure, ii. 1207. See ii. 2673 a. kidnapping an offence at common law, ii. 1208. how proved, ii. 1208–11. conspiracy to abduct, ii. 1213. ABORTION. Offence at common law, ii. 1220. definition of quickening in England, ii. 1220; iii. 3542. See ABORTION.- Continued. general law as to same, ii. 1220-7. Roman law, ii. 1224. under New York statute of 1846, intent to destroy the child must be alleged, ii. 1228. construction of same statute as to convictions, ii. 1228. in Pennsylvania, advising woman to kill her child, after whose birth she kills it, makes accessary before the fact, ii. 1230. immaterial under English statute whether woman was pregnant, ii. 1230. when pregnancy ceases, ii. 1230; iii. 3542. consent is no defence, ii. 1230. woman operated on a competent witness, ii. 1230. (See HOMICIDE, INFANTICIDE; and see vol. iii. 3530.) (See CONSPIRACY.) ABSENCE OF DEFENDANT ON TRIAL, when fatal to case, iii. 2972, 2998, 3364, 3398. ABSENCE OF MATERIAL WITNESSES, when ground for new trial, iii. 3374. when ground for continuance, iii. 3009, ABUSING FEMALE CHILDREN. (See RAPE.) ACCESSARY. (See PRINCIPALS AND ACCESSARIES.) Accessaries before the fact, i. 134. Accessaries after the fact, i. 146. Liability of principal for criminal act of agent, i. 151. where the agent acts directly under the principal's commands, i. 152. where the agent is acting at the time in the line of the principal's business, but without specific instructions, i. 153. where the principal resides out of the jurisdiction, i. 154. ACCIDENT, when exculpatory, i. 751. when affecting question of negligence, ii. 1002. ACCOMPLICE, as witness for prosecution, i. 783. as state's evidence, i. 591 f, 792. when entitled to pardon, i. 591 ƒ, 763, 784. when admissible as witness for defence, i. 792-4. when declarations of are evidence, i. 662, 702. |