Christiancy J.:
The errors assigned in this case are substantially as follows:
1. The insufficiency of the indictment.
2. The refusal of the Court to charge the jury as requested in each of the points specified in the bill of exceptions, and the charge actually given, as far as excepted to.
3. That the second count of the indictment is insufficient, in not giving the proper name of the child, nor otherwise sufficiently designating it; and, under this, it is contended that as the verdict and judgment are general, the judgment should be reversed, because one count is defective.
The first and third grounds o'f error relate to the indictment: the first is general in its terms, and points to no specific defect; and none was urged upon the argument under this head, except that the indictment charges the defendant dh rectly with the commission of the offense, and was not, therefore, appropriate to a case where the offense was committed by the hand of another, and the defendant was only connected with the offense by counseling, hiring, and abetting.
' Now, it is quite evident that this is not properly an objection to the form or validity of the indictment, but an indirect mode of objecting to the propriety or sufficiency of the evidence offered in its support, or to a variance between the indictment and the proof The objection in this form clearly admits the sufficiency of the indictment if sustained by proper and adequate evidence: it does not appear upon the face of the indictment, and can only be made apparent by bill of exceptions. We will, therefore, defer the consideration of this point until we come to the exceptions.
[80]*80The second error assigned relates entirely to the second count; and as this was a bastard child, only eight months old, and could only have a name by reputation or baptism, and does not take the name of the mother, unless gained by reputation (Reg. vs. Clark, Russ. & Ry. 858; Rex vs. Waters, 1 Moody C. C. 457; Reg. vs. Stroud, 1 C. & K. 187), and can have no name by reputation as soon as born (Coke Lit. 36), and the absence of a name is sufficiently accounted for (without stating- it to be unknown). when described as “ then lately born ” (Reg. vs. Hogg, 2 M. & Rob. 380; and see Reg. vs. Willis, 1 Car. & K. 722), and if a month old, and actually baptised by a Christian name, can not be described as unknown (case last cited), and the mother calling it by a certain Christian name would not give it that name by reputation (Reg. vs. Smith, 1 Moody C. C. 402), it would seem not to be very clearly settled how “lately” a bastard child must bo born, to avoid the necessity of namh% it or describing it as unknown. A bastard child eight months old is,, perhaps, rather young to be presumed to have acquired a name by reputation; and the baptism of even legitimate children is not so universal in this country as to authorize its presumption without proof. But we wish to be understood as giving no opinion in reference to the objection to this count, since we deem it wholly unnecessary to the decision of the cause. If this count were clearly defective, the first being good is sufficient to warrant the verdict and judgment, if no other error appear in the cause. Such is the course of decisions in all the States of the Union, where the question has arisen, except Virginia. — See Wharton’s Cr. Law, 2d Ed. 864, and authorities there cited. Such was also the uniform course of decisions in England, from the earliest times down to a very recent period (1 Chitty’s Cr. Law, 4th Amer. Ed. 700), when it was overturned, for a time at least, by the House of Lords in the great State Case of the Queen vs. O’Connel. But, in estimating the credit due to this decision, we should not forget that the House of [81]*81Lords is aa political body with judicial powers; that the case was one which, under the guise of a judicial proceeding, is generally believed to have involved questions (in the opinion of that body) of greater political than judicial consequence; that the administratiqp in power sought the result which ensued upon that decision, as the only mode of escape from an embarrassing position; and that the decision has failed to command the respect of the profession, and can scarcely sustain itself in their own courts. — See 3 English L. & Eq. R. 23. Such a decision, in any country, by a court so constituted, and under such circumstances, especially when it overturns the long-settled law of the land, must be viewed as a very unsafe precedent, and can scarcely be expected to command the respect usually accorded to judicial decisions, beyond the sphere of the legal power of the court to enforce such respect.
The indictment then is sufficient to warrant the verdict and judgment, if it has been sustained by the evidence, and if no error appear in the proceedings.
We come, therefore, to the exceptions; and the best mode of considering these will be to refer to the statute on which the indictment is founded, and which defines the principal offense. This statute is in the following words: “If the father or mother of any child under the age of six years, or any person to whom such child shall have been confided, shall expose such child in any street, field, house, or other place, with the intent wholly to abandon it, he or she shall be punished by imprisonment in the State-prison not more than ten years.” —R. S. 1846, Chap. 153, Sec. 31; 2 Compiled Laws of 1857, Sec. 5741.
Now it must be manifest that an indictment, in order to bring an offender within this section, must allege (as this indictment has done), either that the defendant was the “father” or “mother” of the child, or that it had been “confided” to him; otherwise, it would be clearly bad on demurrer, as no other person can, by legal possibility, commit the offense [82]*82created by this section. — Arch. Cr. Pl. by Waterman, 85-2 and 86. If it be necessary to allege this in the indictment, to bring- the defendant within the statute, it must be equally necessary, and for the same purpose, to prove it when alleged. — 2 Hawk. c. 25, sec. 112; Arch. Cr. Pl. 79. If the defendant in this case had been charged as the father of the child, no one would have doubted the necessity of such proof; had he been charged as the mother, if the error did not sufficiently ■appear on the indictment, it would at least have demanded the most cogent proof. Now, it is just as necessary to prove the relation mentioned in this indictment, as either of the others.
It may be laid down as a.safe general rule, That any allegation necessary to bring an offense or an offender within a statute, must be substantially proved as alleged. Possibly there may be some peculiar cases, where such allegation might be presumed, or the onus of disproving it thrown upon the defendants; but such cases must be extremely rare, and this certainly is not one of them.
We do not mean to assert that, in this case, it would have been necessary to show that the child was delivered into the immediate manual custody of the defendant; if it were delivered to some other person enqployed by him to receive it, and upon the strength of representations made by him to the mother, inducing the belief, on her part, that it would be under his control and direction; — in short, if the confidence were reposed in him, rather than in the agent who actually received it, this would be confiding the child to him within the meaning of the statute. But, whether it was confided to the defendant in this or any other manner, was a question of fact for the jury, and, until they had settled this question in the affirmative, they could not legally convict the prisoner under this section or this indictment.
The Court were so requested to charge the jury, but this request was refused; and this question does not appear to have been submitted to the jury in any form or manner [83]*83Vbatevev. Hence, the first exception is well taken, and is decisive of the cause.
But, as there are other important questions presented by the exceptions, arising under statutes which have not yet received a judicial construction in this State, and as these may arise again, under the same, or another indictment, growing' out of this transaction, it may be well to notice them here.
The second point upon which the Court was requested to charg-e, though very loosely expressed, and confounding other questions with the point, may yet, we think, be said to raise the question, Whether, under .this indictment, the defendant can be convicted by proof of facts showing only that he counseled, or aided and abetted the commission of the offense by others ?
To determine this question, it becomes necessary to refer to our statutes fixing the grades of crime and the mode of prosecution against principals, aiders and abettors, or accessories.
Section 18, chapter 161, Revised Statutes 1846,
The principal offense, then, provided for in section 31, chapter 153, and for which the defendant in this case was -indicted, is a felony.
[84]*84The Act of 1855, section 19,* enacts “that the distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of' felony, is abrogated; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, may hereafter be indicted, tried, and punished as principals, as in the case of a misdemeanor.” This section is a rather distant imitation of the English statute, 11 and 12 Victoria, Chapter 46, Section 1 (Arch. Cr. Pl. by Waterman, 15 and 16). But the English statute did not abolish the. distinction between principals and accessories, and therefore, left in full force the statute, 1 George IV, Chapter 64, Section 9 (Waterman’s Arch. 16) from Avhich the provisions of' our statute, sections one and two, chapter 161, were substan-. tially copied. The terms “ aid and abet, though not present,”as used in our statute, section 19, appear, from the context^ to be used in an enlarged sense, including all which go to. constitute an accessory before the fact at common law. — See 1 Russ. Cr. Law, 6th Amer. Ed. 81, 32; Jacob’s Law Dictionary, title “Aider and Abettor.”
We think, therefore, the effect of this section is to repeal sections one and tAVO, chapter 161, Revised Statutes, which provided that accessories before the fact, in felony, by counseling, hiring, procuring, &c., should be punished in the same manner as the principal felon, and that they might bo indicted and convicted as accessories before the fact, or for a substantive, felony, whether the principal felon should have been convicted: or not, <fcc.; because this section 19 abolishes the distinction between principals and accessories before the fact in felony— a distinction upon which sections one and two, above cited, mainly, if not entirely depend. This section 19 of the Act of 1855, is repugnant to sections one and two in everything, which depends upon the distinction formerly existing between [85]*85'principals and accessories in sucli cases. It might be a very nice question to determine whether there is any repugnancy, first, between this section and the provision of section one, making the person who shall aid in the commission of a felony punishable in the same manner as the principal felon; and, second, the provision of section two, making those who counsel, hire, or procure, liable to be convicted of a substantive felony; but in both these respects, if there is no repugnance, it is because of their identity, in effect, with like provisions in section 19 of the Act of 1855; and we think, therefore, in such a case at least, the rule ought to apply, “That where a subsequent statute covers the whole ground 'occupied by an earlier statute, it repeals, by implication, the former statute, though there be no repugnance.”— Commonwealth vs. Cooley, 10 Pick. 37; Goodnow vs. Buttrick, 7 Mass. 140; Bartlett vs. King, 12 Mass. 537, 545; Ashly, appellant, 4 Pick. 21, 23; and see 1 Pick. 452; Ibid. 43, 45; 17 Ibid. 80; 5 Ibid. 168; 3 Cush. 150; Towle vs. Marrett, 3 Greenl. 22; Commonwealth vs. Cromley, 1 Ashm. 179; and see 3 Binney, 595, 597; 13 S. & R. 426; State vs. Whitworth, 8 Porter, 434; Smith vs. State, 1 Stew. 506; State vs. Seaborn, 4 Dev. 305, 310; Dugan vs. Gittings, 3 Gill, 138; Smith vs. State, 14 Mo. 147; Bryan vs. Sundberg, 5 Texas, 418; Leighton vs. Walker, 9 N. H. 59; Bishop on Cr. Law, Sec. 92 (an excellent work).
The only statutes, then, which can affect the prisoner in 'the case before us, are section 31, chapter 153, upon which the indictment is founded, and section 19 of Act of 1855; and, as the offense created by section 31 was not an offense •at common law, it follows that, unless he comes within one or the other of these statutes, he has committed no offense known to the law.
We have already seen that to constitute a principal offender under section 31, he must sustain towards the child one •of the three relations mentioned in that section; viz., he must be either the father, or mother, or a person to whom the •child has been confided; as the exposing the child, with intent [86]*86to abandon, by any other person, is not rendered criminal by this section, even in a principal; much less an aider and abet-, tor, who is not even mentioned in the section. And as there can be no accessory, as a common law incident of a statute felony, since that incident has been abolished by the statute of 1855, it follows that no person, not sustaining one of these relations to the child, can be convicted for counseling, aiding, and abetting in the commission of the offense, either as a principal, or an accessory under section 31, or as accessory at common law.
Hence, as the commission of the principal offense by any person not sustaining one of these relations is legally impossible, he must be guilty, if at all, as an aider and abettor; and, in such case, his guilt will consist solely in the aiding and abetting; which, therefore, in a case of this kind, and since accessories are abolished, must be a substantive offense, or no offense at all.
Has, then, the statute of 1855, section 19 (the only remaining statute applicable to the subject), rendered such aiding- and abetting criminal in one not present, and provided for-its punishment? This Act provides that all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, may hereafter be indicted, tried, and punished as principals, as hi the case of a misdemeanor. This, then, clearly renders all aiding and abetting in felony, though by persons not present, criminal, and prescribes the punishment, as in the case of the principal. And under this section, such aider and abettor may be convicted and punished, though not sustaining the relation necessary to bring him within the description of a principal offender under sec-, tion 31, chapter 153. But to bring such a person within this section (19), he must be indicted under it, since it is the. only law which renders him criminal; and as the offense, in such a case, consists solely in the aiding and abetting, these, circumstances must be alleged in the indictment, or the offense. [87]*87does not appear. He must be indicted under the statute which he has violated, and not under that which he did not violate. But it is contended by the prosecution that it was the intention of section 19, of Act of 1855, to provide that, in all cases, an aider and abettor might be indicted directly as committing the principal offense, in the commission of which he had aided and abetted, without requiring the aiding and abetting to be set out in the indictment; and that the last clause of the section, “as in case of a misdemeanor,” clearly shows this intent. It is true that such is the general rule in misdemeanors (see Bishop on Cr. Law, §483, and authorities there cited); and in misdemeanors generally, aiders and abettors, if guilty at all, are guilty as principals. But even, in a case of misdemeanor, if the person indicted can not legally be guilty as a principal, as is sometimes the case where the principal offense can only be committed by a certain class of persons (and the defendant does not come within that class), he can not be indicted as a principal where he only becomes guilty by the aiding and abetting; but if indictable at all, he must be indicted specifically for the aiding and abetting, as a substantive offense. This must be so in the nature of things, if there were no authorities to support it. But we are not without authority upon the point. Thus, the statute of 9 George IV., Chap. 31, See.-14, provided that if the mother of a bastard child should, by certain means therein stated, endeavor to conceal the birth thereof, she should be guilty of a misdemeanor, and punished in the manner therein provided; and section 31 of the same chapter provided that any person who should “ counsel, aid, and abet the commission of such misdemeanor, should be liable to be proceeded against and punished as a principal offender. — See the statute in the Addenda to 2 Buss, on Cr. A man who had aided and abetted the mother in the commission of the offense, was indicted as a principal under section 14; but the Court held that he could not be convicted under that section, but that he might be convicted on [88]*88an indictment, under section 31. — Rex vs. Douglass et al. 7 C. & P. 644; and see Reg. vs. Bird, 2 C. & K. 817. In cases of this kind, then, the provision of this section, that aiders and abettors may be indicted “as principals,” can not be construed to mean that they may be indicted as having directly committed the principal offense, in the commission of which they have aided and abetted only; especially in a case like the present, where, if the defendant had directly committed the very act constituting the offense, he would not be guilty. It can only receive this construction, if at all, in those cases where it was legally possible for the defendant to commit directly the principal offense.
It is too apparent that such a construction as contended for, in a case of this kind, tends to absurdity, and ends in impossibility; it must, therefore, be rejected. The statute, we think, admits (and in this class of cases requires) a more reasonable construction, and one which will effect its real purpose of holding aiders and abettors to a criminal responsibility as substantive offenders. What constitutes the principal offense of an aider and abettor not present, under this section? Clearly, in a case of this kind, it consists solely in the aiding and abetting. Hence, an indictment which charges him with the aiding and abetting, charges him as a principal, and of the only principal, or legally possible, ‘offense which he can commit. The case would be substantially met by an indictment for a substantive felony, similar in form to one framed under the statute 7 George IV., Chap. 64, 8ec. 9, from which section 2, chapter 161, of our Revised Statutes Avas substantially copied. For such an indictment see Arch. Cr. Pl., 5th American Ed. 690; and see 1 C. & M. 200.
These considerations lead us inevitably to the conclusion, That in all cases of felony, where, by the statute creating the principal offense, or the existing common law, only persons of a certain class, or standing in a certain relation, are competent to commit such principal offense, the indictment against aiders and abettors, not belonging to such class, or [89]*89standing in sncli relation, must be under this section, and must set out the aiding and abetting, in which alone the crime consists. This rule will apply to several classes of crime: such, for instance, as embezzlement; the making of fraudulent receipts by warehousemen; any malversation in office; adultery, incest, &c.
In cases of felony generally, where the commission of the principal offense is not confined to persons of a certain class, or sustaining a particular relation, the reasons above given for the conclusions at which we have arrived, do not necessarily apj>ly; and we do not wish to be understood as expressing any opinion as to the validity of this direct form of indictment against aiders and abettors not present, in such cases: but, as the constitutional power of the Legislature to authorize this form of indictment in such cases has been seriously questioned (see dissenting opinion of Kcerner J. in Baxter vs. People of Illinois, 3 Gilm. 368); and especially since it is much more fair and liberal towards a defendant to set out in the indictment the facts of his aiding and abetting, so as to inform him of the nature of the evidence to be adduced against him, and the statute in question will clearly admit of this latter form of indictment, we can not but deem it the safer and better form.
Another important question is presented by the exceptions and the charge, viz., What constitutes the offense of “ exposing with the intent wholly to abandon,” within the meaning of section 31, chapter 153?* No difficulty can arise upon the words relating to the intent. It is obvious that the term “abandon” is here used in its ordinary sense, — to forsake, to leave without the intention to'return to, to renounce all care or protection of. It refers only to the intention of- the party as connected with his own act, not the acts of others. The intent to abandon, therefore, on the part of the person exposing the child, has no reference to the probability or improbability of relief to the child from other hands: this [90]*90intent is wholly independent of, and does not necessarily imply, an intent to injure. But to “expose” the child is the substantive act — the “intent to abandon” is the secondary ingredient; both must concur to complete the offense. The difficulty arises upon the word “expose”; and what shall be said to be a sufficient exposure of the child to bring the act within the prohibition of this section, is a question of some difficulty. .The term “ expose,” in such a connection, does not appear to have become a legal term, the meaning of which is settled by'judicial decision, either in this country or in England. This section substantially was first adopted as a new provision in the New York Revised Statutes (vol. 2, p. 665, Sec. 35), from which it was copied into ours; and we do not find that it has ever received a judicial construction in that State. The question is, therefore, now presented for the first time for adjudication, and we are compelled to seek for its meaning in the general popular sense of the term, the context, the subject-matter, and what we may deem to have been the occasion and design of the statute.
The following definitions of the word, as given by Webster, sufficiently express the general sense of the term: — “To remove from shelter; to place in a situation to be affected or acted on.” In reference to pain, “To make liable”; “to subject”; and (referring to the custom of some nations to expose their children) “to cast out to chance; to place abroad, or in a situation unprotected.” And see Encyclopedia Britannica, Edinburgh Ed. of 1191, title “Imposing,” where it is said (speaking of this custom among the ancients), “The places where it was usual to expose children were such as people frequented most. This was done in order that they might be found, and taken up by compassionate persons, who were in circumstances to be at the expense of their education. With this intention, the Egyptians and Romans chose the banks of rivers, and the Greeks the highways.” The connection in which this section stands in our statute, in the chapter entitled “ Of Offenses against the Lives and Persons [91]*91of Individuals,” as well as the severity of the punishment, we think very clearly indicate that the exposure contemplated by this section must be such as may subject the child to hazard of personal injury — such as may peril the life or health of the child, or produce severe suffering or serious bodily harm: and, hence, that to leave a child, with the intent wholly to abandon it, “in a house [or other place] where it would be certain to be cared for,” would not constitute the exposure contemplated by the statute. We can not suppose the Legislature intended to inflict so severe a punishment, to protect “ persons not parents or guardians from being burdened with the care and custody of children,” if they choose to assume that care and custody, or, in other words, from an unexpected demand upon their benevolence, from which . they might rid themselves at any time by applying to the officers having charge of the poor. Such severity, for such a purpose, would be unprecedented in the history of legislation. On the other hand, it is perfectly clear that no actual injury need ensue from the exposure.
We may find some aid in arriving at the legislative intent, by reference to the common law, as it existed prior to the statute, and the defects, if any, sought to be remedied.
At common law, the exposure of a child, with intent to abandon, was no offense, unless injury to the child actually ensued; and then the crime was measured by the event: in other words, the common law punished only the injury, not the exposure to, or hazard of, the injury. — Reg. vs. Hogan, 5 Eng. L. & Eq. R. 553; Reg. vs. Renshaw, 20 Ibid. 593; Ibid. 591; 1 Bishop Cr. Law, See. 413. But, it was often difficult to determine whether the injury in a given case was the result of the exposure, or of some other cause; besides, this remedy, after the mischief was done, came too late. The object of the statute obviously was to meet the exposure to injury in limine; to prevent the hazard of injury, and to punish as a crime the act creating, the hazard.
The question, therefore, upon this point, is simply this:
[92]*92Did the acts of the party leaving- or abandoning the child, viewed in connection with the time, place, and all the accompanying and surrounding circumstances, subject the child to the hazard of such personal injury? If so, this is an exposure. The law can not enumerate the chances, nor fix upon any degree of risk as the dividing line between impunity and crime. And any rule, based upon an attempted distinction of this kind would be clearly giving impunity to crime, or be so vague as to be wholly unintelligible. To illustrate (and it is but an illustration, for the question does not admit of arithmetical solution), shall we say the chances of injury must exceed the chances of safety? This might be partially intelligible, but would it be just and consistent with the protection which the law should extend to helpless infancy ? This would be to hold that a party might innocently (though with the criminal intent to abandon) subject the child to fifty chances of injury, to which it would not othex-wise have been liable, so that he should leave it an equal number of chances for safety; yet none of these fifty chances of injury woxxld have existed but for the party’s criminal act; he can not, therefore, be credited with the fifty chances of safety, for these, and fifty more, would have belonged to the child, if he had simply performed his legal and moral duty of care and protection. These fifty chances of injury, therefore, are so much positive crime — so much actual exposure within the statute. But, shall we say a decided preponderance of probabilities in favor of safety shall exonorate the prisoner? — say íxinety chances of safety, and only ten of injury? Still, can a party, with the inhuman purpose of abandonment, innocently subject the child to the risk of these ten chances of injury, which would not otherwise exist? Will the law permit jxarties to hazard the life or health of infants, even as a matter of amusement, upon a mere game of chance, othex-wise innocent, though the chances might be nine out of ten in its favor ? If not, then much less can it be permitted whexx the purpose'"" is not only criminal but inhuman. To admit [93]*93such a principle would be a reproach to the laws and the civilization of the age. The law can recognize no deg'ree of hazard, thus created, as void of criminality. We do not intend, by this, to say that a bare possibility of injury would constitute the exposure; but the only safe and practical rule upon this point, we think, is this: If, from the time, place, and manner of leaving the child — its age, dress, the state of the weather, and all the circumstances surrounding and accompanying the transaction — the jury shall believe that there was reasonable ground to apprehend, or fear, that such injury might thereby happen to the child, then, if accompanied with the intent wholly to abandon, it is an exposure within the statute, and the crime is complete: but if, judging from the like premises, there was no reasonable ground to fear or apprehend that such injury might occur, then the exposure required by the statute did not exist. This may be rendered more definite by saying, That if the child be left at such a time, in such a place, and under such circumstances, as would render a parent, or other person (to whom it is confided) of ordinary prudence and humanity, reasonably apprehensive of such injury to the child, then the hazard may be said to exist, and it is an exposure within the statute.
The question, How far the prisoner is to be held responsible for the acts of Wells and Greenleaf, his agents, in leaving the child at a different place or in a different manner from that which he had advised or directed? will depend upon the question, Whether, if left at the place, or in the manner he directed, it would have constituted the offense? If so, he would be guilty of aiding and abetting the offense, though they may have varied from the instructions, as to the place, manner, and circumstances of leaving the child. — See 1 Russ on Cr. 6th Amer. Ed. 34, 35. If the defendant had previously made an arrangement with any of the inmates of a house, at which it was to be left, to receive it, and if, in pursuance of that arrangement, Wells and Greenleaf were directed.to leave it at the time and place agreed on; or, if [94]*94they had been directed to leave it in the basket of a foundling-hospital, where, from the known regulations of such institutions, some person is always, or at stated hours, on the watch to receive such a trust; — in either of these cases, if they were directed to observe proper precautions for its safety, the defendant would not be guilty, though the parties might have varied from his instructions, and exposed the child; because, here was a reasonable certainty of safety, if his instructions had been followed — such a transaction would be a rightful transfer of the care and custody of the child, and not an exposure or abandonment.
But, it seems to have been assumed by defendant’s counsel, as appears by the fourth point of his request to charge, when taken in connection with the evidence (and it is only in connection with the evidence that any request can be proper), that to leave a child, at night (with the intent wholly to abandon it), at the door of a stranger, without any .previous arrangement with, or intimation to, any of the inmates — making an alarm at the door, and then coming away, without waiting to see whether the alarm would be heard or heeded, or the child discovered or received — might furnish ground for a reasonable expectation of defendant that the child would be taken care of by the inmates; and that, if he had such reasonable expectation, this would not be such an exposure as the statute contemplates. This point, we think, is fallacious on two grounds: JElrst, it admits, like every other point taken by the defendant’s counsel, the intent wholly to abandon the child before placing it in the actual or constructive care or custody of any other .person — in other words, to abandon it to chance. This does not seem to' be denied; yet this is the only criminal intent required by the statute — the only question of intent involved in the issue. This intent being admitted, the whole question turns upon the point, Whether the leaving of the child according to directions of the defendant, would have been an exposure?— in other words, Whether it would have been subjected to [95]*95the risk of injury? —and this must depend again upon all the surrounding circumstances. . Now, these circumstances, and consequently the question of hazard or exposure, can in no way be affected by the expectations of the defendant One way or the other. If this were an indictment at common law for the injury actually resulting from the exposure, then the expectations of the defendant might be very material, as bearing upon the question of intent to injure, or as showing malice, express or implied; but here, no such intent is in issue — no intent but the intent to abandon.
But, Secondly, the defendant’s fourth point is fallacious in assuming that, in abandoning a child, a party has a right, without previous arrangement or other special ground, to presume that the child will be discovered, and protected by strangers who are under no legal or moral obligations of that kind more than the world at large. We speak here only of the case of a child wholly incapable of protecting itself, or making known its wants, as in the present case; for a child eight months old is as powerless of self-protection as one of 'eight days. By the common understanding of all civilized nations, it is essential to the health, comfort, and safety of such a child, that it should at no time be without the watchful care and guardianship of some person who shall be responsible for its welfare: left to itself, it must, in a short time, suffer and perish.
This care and protection of infants is one of the most sacred duties imposed upon man by his Maker; and the law is solicitous, in various rvays, to enforce the performance of this duty. No parent, or other person entrusted with the custody and protection of helpless infancy, can be permitted to divest himself of the responsibility which this trust imposes, until that custody and protection have been committed to or assumed by other hands. And if, in the attempt to throw off thejresponsibility, he abandons the child, he must be required first to see that there is at least a reasonable certainty that some other person will assume it before the [96]*96risk of injury shall occur from the abandonment; he must be held to the highest degree of diligence. The safety of a human being depends upon his acts. The law extends its protection only to acts which are legal; he is in the performance of an illegal act — he has renounced the protection of the law, and must look to his own acts and his own diligence alone to protect him from criminal responsibility.
The defendant has no right to presume, and the Court can not presume, that a stranger, under no legal or natural obligation, will, out of mere benevolence, burden himself with the care and protection of the child, when those who are under the strongest obligations, human and divine, have abandoned it to chance. Can the law hold mere strangers, or passers-by, to criminal responsibility for neglecting it, when discovered? If so, shall it be the first who discovers it, and who, with the kindest wishes, and hopes as good as the defendant’s, leaves it to the next? or the second, who leaves it to the third? The defendant might hope, and for the honor of humanity we should also hope, the child might find succor and protection even from strangers; but this hope can not be admitted as a presumption, nor of itself operate as a defense, though it might perhaps mitigate the enormity of the offense, and very properly be taken into consideration, by the Court, in awarding the penalty; and the ample range of punishment allowed, from ten years down to a few months in the State-prison, gives full scope for the exercise of a lenient and just discrimination in such cases.
A party, seeking to abandon a child, and with that intent leaving it at night, even at the door of a stranger’s dwelling, without previous arrangement or notice, should not be satisfied with ringing the bell, or making an alarm at the door, and then leaving the child to the chances which may befall it, without waiting- to learn whether the alarm will be heard or heeded, or whether the child will be discovered, or, if discovered, taken in charge. He should remain within view, or within the hearing of its cries, until he sees that it [97]*97has found the protection of another; and if that protection does not come in time to prevent danger, he should resume it himself, and trust to a future .and more propitious effort— any time will be early enough to commit crime. But if, in the execution of his criminal purpose, he neglect all these precautions, he must, at his peril, take care that it be under circumstances which do not subject the child to the hazard of injury. It may perhaps be difficult to define, in advance, any state of such circumstances, void of hazard to so young a child, when all such precautions are neglected; as, in such case, it would seem the only hope for its safety must be a reliance upon the benevolence of others who are under no legal obligation to protect it. But we do not say that circumstances might not exist, even in such a case, which would render the child safe from the hazard of injury. It is a question of fact, for the good sense of a jury, under the rule of law above laid down.
As to the fifth point taken by the defendant in his request to charge, we do not think it essential to bring a party within section 81, chapter 158, that he should be either the father, mother, or guardian of the child, nor one to whom a child may be botmd or apprenticed; but that any person receiving the care and custody of the child, even for a temporary purpose, from a person standing in either of those relations, would come within the statute, as a party to whom the child was confided. The remaining grounds covered by this fifth point have been sufficiently met by what has been said in reference to the indictment.
The judgment in this case must be reversed, the verdict set aside, and a new trial awarded.
Martin Ch. J. and Campbell J.-concurred.
Manning J.:
I agree with my brethren, except in the construction given by them to the statute; and in that we differ but [98]*98slightly. The word “expose,” on which the construction of the section hinges, is here used, it seems to me, in the sense of “to cast out to chance; to place abroad, or in a situation unprotected” — one of the definitions given to the word by Webster; and that every abandonment, therefore, where there is no provision made for the protection of the child at the time of the abandonment, or previously, comes within the stat ute. Nothing short of this, I think, will satisfy the words of the statute, or fully meet the evil it was intended to suppress.
Judgment reversed, and new tidal awarded.
Sec, 5954: of Compiled Laws.