Commonwealth v. Dougherty

107 Mass. 243 | Mass. | 1871

Mobtou, J.

It appeared at the trial, that the defendant was the sexton and person in charge of the church, and that it was his duty to take charge of and conduct funerals at the church. The complainant McCarthy had no right to insist upon conducting a funeral there in violation of the rules prescribed by the authorities of the church to maintain order and prevent interference with other religious exercises. The facts show that he did so, and that, upon being requested to desist and leave the church, he refused, and persisted in his unauthorized intrusion. We think the defendant, being in charge of the church, upon such refusal, had a right to remove him; and as the facts find that in so doing he used no more force than was necessary, he was not guilty of an assault and battery. The jury should have been instructed, as requested by the defendant, that upon the facts shown at the trial he was entitled to an acquittal.

Verdict set aside.

At the trial of the second complaint, in the superior court, also before Meed, J., the following facts appeared :

The fee of the Roman Catholic burial ground in Pittsfield was in Edward H. Purcell, the pastor of the church of St. Joseph in Pittsfield; and he had established certain rules for its use, the tenth and eleventh of which were as follows:

“ Tenth. The conduct and charge of all funeral processions and gatherings of persons in and upon the grounds of said cemetery shall be in the person appointed for that purpose by the pastor of the church of St. Joseph in Pittsfield, and strict obedience to his requirements is demanded and will be enforced.

“ Eleventh. Undertakers, and all other persons having charge of a funeral or burial, before entering upon the cemetery grounds, will notify the person in charge of the cemetery of the time such burial will occur. In the cemetery all arrangements therefor will be made, and the charge of such funeral received at the entrance of said cemetery, and no undertaker or other person than the pastor or his appointees will be permitted to officiate in any way or matter upon the grounds.”

The defendant was the person appointed by Father Purcell under the tenth rule, and had charge of the burial ground.

Licenses for lots were granted by Father Purcell in a form certifying that the licensee was entitled to the use of one burial lot of specified dimensions, subject to the rules for the use of the burial ground, and on condition that persons dying drunk or unbaptized, or otherwise opposed to the Catholic Church in the opinion of the Roman Catholic bishop of Boston, should not be entitled to observance of the license.

T. P. Pingree J. M. Barker, for the defendant.

The license, under which alone the funeral was allowed in the burial ground, was given subject to rules which were broken by McCarthy’s presence and conduct up to the time of the defendant’s act. McCarthy knew the rules and was deliberately violating them ; for he had been expressly forbidden by Father Purcell to take charge of a funeral at the cemetery. He must therefore be considered as a trespasser persisting in the trespass after having been forbidden by the owner. The defendant, therefore, as the person in charge of the grounds and bound to enforce the rules, was justified in removing him from the cemetery by force. See cases cited in argument in the first case.

The report finds that the defendant’s intention in coming up to McCarthy was to object to his presence and actions. The striking upon the shoulder does not appear to have been anything more than was necessary to attract his attention ; and it is a fair inference that it was but the beginning of a justifiable attempt to remove him from the grounds. Whether the defendant then desisted of his own accord, or was overpowered or prevented by bystanders, is immaterial. The decisive question is, whether the blow was disproportionate or unnecessary, considering the object to be effected. The burden is upon the Commonwealth to show that it was so; and there is nothing from which such an inference can be drawn.

At the funeral (described in the first case) which the undertaker McCarthy was conducting, he “ entered the burial ground with the corpse, under this usual license, and there conducted the funeral ceremonies, and, as is usual on such occasions with Roman Catholics, gave thanks and made prayers at the close.” As McCarthy was rising from his knees and putting on his hat, the defendant, “ coming up to object to his presence1 and actions in conducting the funeral on the cemetery grounds, struck him upon the shoulder, and objecting that he was not permitted to go there as undertaker with a funeral, and that Father Purcell had previously thereto forbidden him to take charge of a funeral at the cemetery, refused to permit him to officiate thereat in the cemetery.”

Upon these facts (as in the first case) the defendant requested, and the judge refused, a ruling that the defendant was entitled to an acquittal; whereupon by consent of the defendant a verdict of guilty was returned and the case reported to this court.

If it is urged that no request to leave is shown, previous to the blow, it is to be considered that a previous request is unnecessary in some circumstances, as where a man enters vi et armis, or breaks in at a gate; Grreen v. Groddard, 1 Salk. 641; and that McCarthy’s entry, having been forbidden, was wilful, and would justify his removal without such a request.

If the facts do not demonstrate the absence of an unlawful intent on the part of the defendant, they at least put the question in so much doubt that the Commonwealth cannot be said to have sustained the burden of proof required to entitle the verdict to stand.

O. Allen, Attorney General, for the Commonwealth.

The defendant struck McCarthy at a stage of the proceedings at which there was no excuse, for using personal violence. Any discussion of the defendant’s rights and privileges in the conduct of funerals in the burial ground, in instances in which he asserts them seasonably, is therefore needless.

Mortoít, J.

We cannot say, as matter of law, that the verdict of the jury was erroneous. It appeared at the trial, that, after McCarthy had concluded the funeral services, the defendant struck him on the shoulder. It does not appear that this was for the purpose of removing him from the cemetery. If it be admitted that the defendant had the right to remove McCarthy, it does not follow that this assault was justifiable. It was for the jury to decide whether the force used by the defendant was used for the purpose of removing him, and whether it was reasonable in kind and degree. Both of these questions were within the province of the jury to determine, and we cannot revise their finding thereon.

Judgment on the verdict.