The indictment under which the defendant was tried and convicted was framed under the Penal Code, § 79, and the material part was as follows: The defendant “being pregnant with a bastard child to which she gave birth, did conceal its death, so that it might not come to light whether it was murdered or not, such child being subsequently found in its concealment dead.”
1. In her motion for a new trial complaint is made that the evidence was insufficient to show that the child whose death had been concealed was born alive. Upon this subject the testimony was as follows: The child was found in an old well, with a diaper pinned upon it, in which there was fecal matter. A physician testified: “ If a child is found dead with a diaper on and an action therein, it is presumptive evidence that the child was alive, but not at all positive evidence.” A strong circumstance tending to show the child was born alive is that a diaper had been put on it so as to afford protection against an evacuation of fecal matter. It is hardly reasonable to suppose that, had the child not been born alive, this precaution would have been taken by the mother. Besides, the physician testified that the discharge of fecal matter was presumptive, though not conclusive, evidence that the child had been liorn alive. Taken in connection with the fact that a diaper was put around the child, the inference that it was born alive was fully sustained. Penal Code, § 79, reads as follows : “ If any woman shall conceal or attempt to conceal the death of any issue of her body which, if it were born alive, would be a bastard, so that it may not come to light whether it was murdered or not, she is guilty of a misdemeanor.” This section is to be found in' article 2 of the fourth division of the Penal Code, which deals with concealing a child’s death, advising the killing of infants, abortion and foeticide. If the infant is so far developed in the mother’s womb as to be ordinarily called “quick,” its destruction is made a-penal offense. § 81 , Taylor v. State, 105 Ga. 846. The wilful killing of an infant thus far developed, by any injury to the mother which, if it resulted in her death, would be murder, is punishable by death or imprisonment for life. § 80, “The constrained presumption arising from the concealment of
2. It is also insisted that the evidence did not show with that degree of certainty which the law requires that, even if the child was born alive, it was a bastard. The testimony discloses that the defendant was a married woman, but for several years prior to the birth of the child she and hér husband had lived in a state of separation. Two witnesses swore that she had confessed that the child was the result of an illicit intercourse with a married man other than her husband, and the reason she assigned for concealing the child in the well was that she did not want to be disgraced by the publicity of giving birth to a child under these circumstances. There was no denial of the statements made during her confession, nor any denial that she made these statements. So the question is: Is a child born of a married woman as the result of illicit intercourse with a man other than her husband to be deemed in law a bastard ? The answer to this question is to be found in the Civil Code, § 2507, which declares that “A bastard is a child born out of wedlock, and whose parents do not subsequently intermarry, or a child the issue of adulterous intercourse of the wife during wedlock.”
Judgment affirmed.