What is the test for a charge of concealment for the murder of a male bastard child?
Ontario, Canada
The following excerpt is from R. v. Levkovic, 2008 CanLII 48647 (ON SC):
Rex v. Brain (1834), 6 C. & P. 349 was a trial of a mother for “the murder of her male bastard child”. The child’s body was discovered in the water. Two surgeons testified that the child had never breathed. In summing up to the jury, Park J. stated: A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it is not essential that it should have breathed at the time it was killed; as many children are born alive, and yet do not breathe for some time after their birth. But you must be satisfied that the child was wholly born into the world at the time it was killed, or you ought not to find the prisoner guilty of murder. The jury acquitted of murder and found Brain guilty of concealment.
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