6 S.E.2d 736 | Ga. Ct. App. | 1939
1. "Whoever shall remove the dead body of a human being from any grave or other place of interment, or from any vault, tomb, sepulchre, or from any other place, for the purpose of selling or dissecting the same, or from mere wantonness, shall be punished by imprisonment and labor in the penitentiary not less than one nor more than 10 years." Code, § 88-9919.
2. The foregoing provisions extend not only to the dead body as a whole, but to any part thereof; and whether the body be in its original or intermediate state of flesh and bones, or in skeleton form only, irrespective of length of time interred.
3. The gravamen of the offense is the removal, except as allowed by law, illegally, for the purpose either of sale, dissection, or from mere wantonness, and the intendment of the law is for the "protection of cemeteries and burying-places in this State, and to prevent and punish the unauthorized use of and traffic in dead human bodies."
4. An indictment substantially in the language of the Code section alleging the illegal removal, and the intent or purpose therefor, of the body of a named person from a grave in a designated cemetery, and alleging that the removal was "wantonly and feloniously" done, is not subject to demurrer on the ground that no crime was alleged, or that there was no charge of a removal of a dead body of a human being, or that the removal was not for any purpose prohibited.
5. Venue is a jurisdictional fact and must be proved as alleged in the indictment clearly and beyond a reasonable doubt; and where the evidence showed on the one hand that the crime was committed in Jeff Davis County, 40 to 50 feet over the line, and, on the other, in Applying County 30 or 35 feet over the line, other evidence being either negative or indefinite as to whether the grave was in Applying or Jeff Davis County or on the county line, it was not error for the court to charge additionally the law under Code, § 27-1103, relative to the jurisdiction *380 of either county upon the issue whether the crime was committed on the boundary line.
6. There is no merit in the remaining assignments of error.
The evidence showed substantially that the defendants, acting in concert, went to the open grave of an old negro, Allen Hodge, buried some twenty years before, whose only remains were in skeleton form, and took therefrom the skull containing several gold teeth; that the defendants carried the skull away from the grave a distance of about 100 yards where the teeth were beaten from the jaws and the skull abandoned. The grave had become opened, over the years, by weather processes, sufficiently to admit entrance singly of the defendants. The evidence also showed purported admissions of the defendants of acts of participation incriminating the defendants jointly, which admissions were corroborated by other and extraneous evidence.
The evidence of several witnesses on venue, in substance, was as follows: the grave of Allen Hodge is about 40 to 50 feet over the line in Jeff Davis County; the cemetery is on the side of the *381 fence next to Jeff Davis County, that's pointed out as the line; the witness does not know whether the grave is in Applying County; the cemetery is on land lot No. 168, and that lot is in Jeff Davis County; the cemetery is in both counties; witness was present when the county line was run between Jeff Davis and Applying Counties, and testified that the graveyard (inclusive of the particular grave) is over in Applying County 30 or 35 feet, or a little more, which testimony was later qualified by stating that the cemetery was in both counties.
The questions to be determined are covered by the headnotes, being more fully discussed hereinafter.
1. From time immemorial civilized nations have sought to protect the graves of the dead and prevent the illegal removal of dead bodies for the purposes of sale, dissection, or from mere wantonness. "Civilized countries have always recognized and protected as sacred the right to Christian burial and to an undisturbed repose of the human body when buried." Thompson v.
State,
2. The inhibitions of the law apply equally to any part of the body and to the body as an entire unit. We do not find that the exact question has been decided in Georgia or other States. InMeads v. Dougherty County,
3. There can be no offense under the statute in question without a removal from the grave or other place of interment; a shifting of the body would not be sufficient. In Ware v.State, 30 Ga. *383 App. 354 (118 S.E. 71), the court held, with reference to the question whether there had been an unlawful removal of a dead body, when the body had been lifted sufficiently only for removal of the coffin, as follows: "An indictment charging the unlawful removal of a dead body `from its grave and place of interment' was not supported where the evidence failed to show that the body was removed from the grave, but showed that the body was merely lifted up in the grave and there taken out of its coffin and laid back in its place when the coffin was being stolen." "Where a person merely dug down to a coffin to search the body for valuables without removing the body, it was held that he could not be convicted of a felony, under Cal. Pen. Code, §
4. While the indictment must allege all the essential elements of the offense, and nothing material to the issue may be taken by *384
intendment, yet a substantial charge in the language of the Code will be sufficient. It need not allege that the body is that of a human being when that fact may appear from the language used. An indictment "charging the disinterring of a dead body need not allege that it was the body of a human being, as that fact will be assumed, but the name of the person whose body was disinterred must be stated or a reason must be assigned for the failure to state it." People v. Graves, 5 Park Cr. (N. Y.) 134; State v.
Little,
While "an indictment drawn under a statute making it an offense to remove a dead body with the intent to use or dispose of it for the purpose" as prohibited by the statute, "must aver such intent or it will be fatally defective" (Com. v. Slack, 19 Pick. (Mass.) 304; 17 C. J. 1150, § 35), and the "mere doing of the act will not raise a presumption that it was done for such prohibited purpose" (State v. Baker,
5. venue is a jurisdictional fact and must be proved beyond a reasonable doubt. Gosha v. State,
6. The remaining assignments of error are without merit, including those assigning error on the failure of the court to charge without the requirement of appropriate written requests.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur. *386