The prisoner being oh trial for the murder of her child, recently born, the Court permitted three witnesses to state to the jury, that the mother of the prisoner -said in her presence, just after the dead body was found, ,.aiid while the prisoner was under arrest, that “ she had .a ,-child this way before, and put it away,” and that the prisoner made no reply, and it was argued from her silence that she had confessed the charge of putting away the first child.' v Of course the purpose of this evidence was to induce the •jury to conclude that if the prisoner had put away one /child, she' would murder another. It might be suggested *493that concealing the birth of a child born dead, is a very different offence from the killing of one born alive.
But evidence of matters not alleged is only admissible when it tends to prove or disprove the fact in issue. The; fact in issue here was the guilt or' innocence of the prisoner on the charge of killing the child, and evidence tending t© prove that she was guilty of the murder of the first child was wholly irrelevant, but well calculated to prejudice and mislead a jury.
“Evidence of a distinct substantive offence cannot be admitted in support of another offense. So, proof of a distinct murder, committed by the defendant at a different time, or of some other felony or transaction committed upon or against a different person, and at a different time, in. which the defendant participated, cannot be admitted; until proof has been given, establishing, or tending to establish, the offence with which he is charged, and showing some connection between the different transactions; or such facts and circumstances as will warrant a presumption that the latter grew out of, and was to some extent induced by some circumstances connected with the former.” Wharton Am. Crim. Law 647.
Admitting, for the sake of argument, that the prisoner did put away her child, there is no connection between that crime and the murder of her second child. The acts did not form one transaction, nor did the latter in any manner grow out of the first.
It is true that in Com. v. Wilson, 2 Cushing 590, it was held that where a prisoner was indicted as an accessory before the fact, to the crime of killing a person who had been actively engaged in ascertaining the perpetrators of a former murder, evidence of the guilt of the accused as to the former murder was held admissible, for the purpose of showing motive as to the second murder.
But there, it will be observed, that it became necessary to *494show guilty knowledge and malicious intent growing out of the first transaction; and it is admitted that such cases form exceptions to the rule already stated. In Homesley v. Hogue, 2 Jones 391, the Court in holding that it was not competent for a creditor, in order to establish the fraud in question, to show that the debtor had made a fraudulent transfer of •of other property to another person, say, “Whether the plaintiff had defrauded his vendee in the sale of the land, had no more bearing upon the issue before the jury, than to prove that in the sale of the horse to another person he had committed a fraud, or to prove he was in the habit of committing fraud. That A has made an usurious contract with B, is no proof that his contract with C is usurious. Such evidence is irrelevant and mischievous, having a direct tendency to mislead the jury.”
As the prisoner is clearly entitled to a venire de novo for the admission of this evidence, we will not further notice the many exceptions taken by the defendant’s counsel, who argued the case with zeal and ability in this Court.
Perhaps, however, it is proper to notice the fact that his Honor in charging the jury, after calling their attention to the witnesses, who testified to the pregnancy of the prisoner, the finding of the body of the child in her possession, and its remaining in an unchanged condition until the coroner and physician arrived, added the words “the prisoner in the mean time detained, on the admission that the child was born alive.”
What his Honor construed into an admission that the child was born alive, must have been the prisoner’s silence, when her mother said in her presence, that she had a child in this way before, and put it away, for the prisoner repeatedly declared that the child was born dead, and she at no time admitted otherwise, unless*her silence, when charged with another crime, be construed into such an admission. *495At all events it is readily perceived how such a remark from his Honor could have unjustly prejudiced the case of the prisoner.
Pee Cueiam. Venire de novo.