*536The opinion of the Court was delivered by
Rogers, J.Upon a prosecution, under the act of the 22d of April 1794, for concealing the birth of a child, the prosecutor must prove the birth of the child, its death, an endeavour to conceal its birth, and that if horn alive it would be a bastard. These are material facts, and must be directly averred, for nothing can be taken by intendment, or by way of recital, to supply the want of certainty in an indictment. 2 Hawk. ch. 25, sect. 60; 1 Salk. 371. An indictment under the 43 Geo. 3, ch. 38, for endeavouring to conceal the birth of a child, must show that the child was dead. The same principle is ruled in Bowles v. The Commomvealth, 2 Serg. & Rawle 46, and also that an averment, by way of recital, is bad. But here there is no direct averment of the death of the child, nor is its death noticed, except in the averment of the concealment of its death: “that the said Martha Douglass did endeavour privately to conceal the death of the said female bastard child.”
In Perkins’s case, it is ruled that, whether the child be dead before or after its birth, need not be proved. This was under the statute of Geo. 3, and in this respect it differs from the 21 James 1. Rosco on Ev. 295; Com. v. M’Kee, Addis. R. 1. And under our statute, whether the child be born dead or alive, would seem to be immaterial. The concealment of the birth and death of a child, which, if born alive, would be a bastard, so that it may not come to light, whether it was born dead or alive, and whether it was murdered or not, constitutes the offence.
Judgment reversed.