Regina v. McPherson (D. & B. 202), Cockburn, C. J.: "The word, attempt, clearly conveys with it the idea that if the attempt had succeeded, the offence charged would have been committed. Attempting to commit a felony is clearly distinguishable

from intending to commit it."

Regina v. Taylor (1 F. & F. 512). The prisoner was indicted for that he by a certain overt act, 8. c., by then and there lighting a certain match, &c., near to a certain stack of corn, &c., unlawfully, maliciously, and feloniously did attempt to set fire to said stack, &c. Prisoner called at prosecutor's house and applied for work; on refusal he asked for money, and on being again refused threatened to burn up the prosecutor. He was watched and seen to go to the stack, kneel down close to it, and strike a match; but seeing he was watched, he blew it out and went away. The stack was not burned at all. Pollock, C. B., told the jury that “If they thought the prisoner intended to set fire to the stack, and that he would have done so had he not been interrupted, in his opinion this was in law a sufficient attempt to set fire to the stack." After stating that buying a box of matches, with intent to set fire to a house would not be sufficient, he adds: "The act must be one immediately and directly tending to the execution of the principal crime, and committed under such circumstances that he has the power of carrying his intention into execution." The jury found that they were not satisfied that prisoner intended to set fire to the stack, but they thought he intended to extort money from prosecutor by his conduct. This was held to amount to not guilty.

I think the law laid down in this case fully supports the present conviction, and that our judgment should be for the crown. Judgment for the crown.

THE QUEEN v. JANE BELL.

(Irish Reports, 8 Com. Law Series, 542. Crown Cases Reserved. November,

1874.)

24 & 25 Vict. c. 100, s. 60.

On an indictment for endeavoring to conceal the birth of a child "by a secret disposition of the dead body of the said child," the evidence for the prosecution having failed to prove the death of the child, the conviction was quashed.

CASE reserved by Fitzgerald, J., from the Antrim Summer Assizes, 1874.

The indictment, as originally framed, was: "That Jane Bell, on, &c., was delivered of a child, and that the said Jane Bell, being so delivered of the said child as aforesaid, did then unlawfully endeavor to conceal the birth of the said child by secretly burying1

1 The amendment made at the trial was by striking out the words in italics, and substituting the words "a certain secret

disposition of the dead body of the said child in a manner to the jurors aforesaid unknown."

the dead body of the said child against the form of the statute." &c.

In support of the prosecution, Jane McClelland deposed that on the 31st of March and 1st of April, 1874, she was on a visit at the house of James Symes, and slept that night in the same bed with the accused, who was a servant in the house; that the accused seemed, from her appearance, to be in the family way; that about a quarter of an hour after going to bed, the accused got up saying she was likely to throw off her stomach, and would go for a drink; she opened the door but did not go, and came back and sat down in the room, in which there was no light, and said there was nothing the matter with her; that she prevented the witness from going for assistance and returned to bed, and then complained of a cramp her leg, but would not allow the witness to get up; that the witness awoke between five and six o'clock in the morning, and the accused was not then in bed; the witness heard a noise as of some one rubbing the floor, got up, the prisoner not then being in the room; saw blood on the bed and on the floor, which was wet as if it had been washed; that there was blood on her stays which were on a chair on which the prisoner sat. [The bed-clothes were produced and were stained with blood.] The accused did not cry or moan; she appeared to be quite strong the next day, and went about her business as usual. Matthew Mason, Symes's servant boy, deposed that, at five o'clock A. M., of the 1st of April, he saw the accused coming out, as if after feeding the pigs, the usual time for doing so being about eight A. M.; she looked ill and pale, and had two bundles in her hands; he saw her going down the stairs at four o'clock that morning; before that day she appeared to him to be in the family way. James Symes deposed that, before the 1st of April he observed the accused was thick and swelled; that he spoke to her, and she told him she was not in the family way. A medical man deposed that, on the 4th of April, he examined the person of the accused, and formed the opinion that she had given birth to a child within a week before that date.

The evidence on the part of the prosecution having closed, H. M. Tracy who, at the request of the court, assisted the prisoner in her defence submitted that the evidence did not sustain the indictment, to the averments in which he directed attention.

The learned judge was of opinion that the averment "by secretly burying the dead body of the said child" was not sustained; and thereupon the counsel for the prosecution applied to have the indictment amended under 14 & 15 Vict. c. 100, s. 1, by striking out "secretly burying," and substituting "a certain secret disposition of."

Tracy objected that the learned judge had not authority to make the amendment, being an alteration of the very charge of the criminal act, and not in the "description of any matter therein described;" but the learned judge was of opinion that he ought to order the amendment, and it was made accordingly.

Tracy then renewed his objection that material averments in the indictment were not sustained, and contended that there was no

sufficient proof that the accused had been delivered of a child within the meaning of the 24 & 25 Vict. c. 100, s. 60; or that she had been pregnant; or that, if delivered, the child had died at or after its birth; or that the "foetus in utero " had attained that stage in maturity that it could be said to have died before its birth.

The learned judge considered that there was sufficient evidence to submit to the jury, and instructed them that if the evidence satisfied them that the prisoner had given birth to a child which had died before, or at, or after its birth, and that she had by any secret disposition of the dead body endeavored to conceal its birth, they were at liberty and ought to convict her.

The jury returned a verdict of guilty, and the prisoner was liberated on bail to appear for judgment, at the following Assizes.

The questions for the consideration of the court were:

1. Had the court below authority to order the indictment to be amended, as stated?

2. Was the evidence for the prosecution sufficient to sustain the verdict?

If the court should be of an affirmative opinion on both questions, the conviction was to stand, but, otherwise, to be quashed.

Tracy, for the prisoner.

The Solicitor General (Ormsby), & A. Henderson, Q. C., in support of the conviction.

WHITESIDE, C. J. Having regard to the two questions submitted to us by Mr. Justice Fitzgerald, we are of opinion that the conviction must be quashed, and the question on which we decide the case is the latter one, namely: Was the evidence for the prosecution sufficient to sustain the verdict? We are of opinion that there was not sufficient evidence to warrant a conviction, and therefore the verdict cannot stand.

The chief justice referred to Regina v. Hopkins (8 C. & P. 591). The offence, by the statute, is by secret burial or otherwise disposing of the dead body; the prisoner therefore must have been endeavoring to conceal the body of the child by secretly burying it. It is essential that she must have done the secret act of disposing of the body of the child after it was dead. We are in this case under many difficulties. The first is defective evidence to satisfy us whether the child was born at all. That, it will be admitted, is a serious difficulty. The next is, was it born alive? The third is, did it ever die? It may, if born alive, be running about in the country at this moment. There is no evidence whatever of its death. It is true the essence of the crime is secrecy, but it would not do to say merely that she did something in secret. Precision is essential in proving the very crime imputed. It must be the very offence of disposing of a dead body that is to be established, and you must have a dead body before you can obtain a conviction for the crime alleged. Nobody can be convicted under our criminal law where the case is left in obscurity and doubt. Though I agree with Mr. Henderson in his able argument that many of the cases cited apply to the former statute, yet you must give evidence of the death to maintain your charge in this indictment. We decide the case on the second question, for it is not necessary to consider the first. Conviction quashed.

UNITED STATES v. COOK.

(17 Wall. 168.

Supreme Court of the United States, 1872.)
Pleading Exceptions.

Statute of Limitations.

Where a statute defining an offence contains an exception in the enacting clause, which is so incorporated with the language defining the offence, that the ingredients of the offence cannot be fully set out without negativing the exception, an indictment must allege enough to show that the accused is not within the exception.

But if the exception is separable from the language of the enacting clause, and the offence can be fully and accurately defined without reference to it, the indictment is good without such reference.

An indictment charged the accused with the commission, more than two years previously, of certain acts amounting to an offence as defined by an Act of Congress; another act limited prosecutions for this and other offences to two years, unless the accused had been a fugitive from justice. On demurrer the indictment was held good, though it did not allege that the accused was within the exception.

ON a certificate of division in opinion between the judges of the Circuit Court of the United States for the Southern District of Ohio, the case being thus: The 16th section of the Act of August 6, 1846 (9 Stat. at Large, 63), enacts: "That all officers and other persons charged with the safe-keeping, transfer, and disbursement of the public moneys are hereby required to keep an accurate entry of each sum received, and of each payment or transfer; and that if any one of the said officers . . shall convert to his own use any portion of the public moneys intrusted to him for safe-keeping, disbursement, or transfer, every such act shall be deemed to be an embezzlement of so much of the said moneys as shall be thus . . . converted . . . . which is hereby declared a felony . . . and any officer or agent of the United States convicted thereof shall be sentenced to imprisonment for a term of not less than six months, nor more than ten years, and to a fine equal to the amount of the money embezzled."

The 32d section of an Act of April 30, 1790 (1 Stat. at Large, 119), entitled "An act for the punishment of certain crimes against the United States," thus enacts: "No person shall be prosecuted, tried, or punished for any offence not capital, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offence, &c. Provided that nothing herein contained shall extend to any person or persons fleeing from justice."

The 3d section of an Act of 1804 (1 Stat. at Large, 119), entitled "An act in addition to the act entitled," &c. (as above), thus further enacts: "Any person or persons guilty of any crime arising under the revenue laws of the United States may be prosecuted, tried, and punished, provided the indictment be found at any time within five years after committing the offence, any law or provision to the contrary notwithstanding.

These statutes being in force, one Cook was indicted in the court below at October term, 1864, for the embezzlement of funds held by him as paymaster in the army of the United States.

The indictment was filed on the 1st of November, 1864; and the first five counts charged acts of embezzlement on the 1st of May,

the 6th of July, the 15th of October, the 12th of September, and the 20th of September, in the year 1862.

The defendant demurred to these counts, because it appeared upon the face of them, severally, that the crime charged was committed more than two years before the finding and filing of the indictment, and that the prosecution therefore was, before the finding and filing of the indictment, barred by the statute in such cases made and provided.

Three questions now arose on which the judges were opposed in opinion, and which they accordingly certified for answers by this

court:

First. Whether it was competent for the defendant to take exception, by demurrer, to the sufficiency of the first five counts of the indictment for the causes assigned.

Second. Whether the said five counts, or either of them, allege or charge, upon their face, any crime or offence against the defendant for which he is liable in law to be put upon trial, convicted, and punished.

Third. Whether the 32d section of the Act of 1790, sometimes called the Crimes Act, applied to the case, and limited the time within which an indictment must be found for such an offence, or whether in regard to the period of limitation, within which an indictment was to be found, the case was governed by the Act of 1804, or any other act limiting the prosecution of offences charged in the said five counts.

Mr. G. H. Williams, Attorney General, and Mr. C. H. Hill, Assistant Attorney General, for the United States.

Messrs. Hunter, Kebler, & Whitman, for the prisoner.
The opinion of the court was delivered by

CLIFFORD, J. Officers and other persons charged with the safekeeping, transfer, and disbursement of the public moneys, are required by an act of Congress to keep an accurate entry of each sum received, and of each payment or transfer; and the 16th section of the same act provides that if any one of the said officers shall convert to his own use, in any way whatever, any portion of the public moneys intrusted to him for safe-keeping, disbursement, or transfer, or for any other purpose, every such act shall be deemed and adjudged to be embezzlement of so much of the public moneys as shall be thus taken and converted, which is therein declared to be a felony; and the same section also provides that all persons advising or participating in such act, being convicted thereof before any court of the United States of competent jurisdiction, shall be punished as therein provided. 9 Stat. at Large, 63.

Founded on that provision, the indictment in this case contained six counts, charging that the defendant, as paymaster in the army, had in his custody for safe-keeping and disbursement, a large sum of public money intrusted to him in his official character as an additional paymaster in the army, and that he, on the respective days therein alleged, did unlawfully, knowingly, and feloniously embezzle and convert the same to his own use. Such conversion is alleged in the first count, on the 1st of May, 1862, in the second on the 6th of