1 Vt. 331 | Vt. | 1828
delivered the opinion of the court. The slat-ute of this state, (see page 275,) enacts, concerning the offence with which the defendant is charged, “ that, if any person, or persons, shall dig u.p, remove, or disturb, the remains of any dead person, interred within this state,” he shall be punished so andso„
This indictment is not drawn with great caution. It does not attempt to charge the defendant in the words of the statute. Nor was that necessary, if other words equivalent were inserted. It is objected to the indictment, that it neither adopts the words of the statute, nor those that are equivalent. The indictment, instead of saying “the remains of any dead person,” says “the dead body of Benjamin P. C-alfe, then lately before laid in a coffin, and interred in the same burying'ground.” What are the remains of a dead person? thedead body is the answer .This is well understood in common parlance. Nothing .else does remain,after the spirit has fled, but the dead body. In speaking of a person who is living, if we say that his body was hurt, wounded, &e. it is well under-' stood in its appropriate sense. It means the body of a person, not of his horse, or his ox.
The objections that it does not appear that Benjamin P. Calje was a person — that he ever lived and died, &c. are rather too nice and technical to be sanctioned. All the statutes against crimes use the expression, “ if any person shall do such an act.” “ If any person shall break the peace.” “• If any person shall counterfeit the coins,&c.” No indictment, upon these statutes, was ever seen alleging that the defendant was a person. The charge is, that A. B. did such an act. This is sufficient.
So of some other circumstances noticed as objections. They seem answered by reading the indictment,as every person would understand it. “That the defendant, at ITashingion in said county,with force and arms, the public buiying groundneaiy&c. in said Washington,unlawfully did enter; and the deadbod}' of oneBenja* min P. Calfejhvn lately before laid in ajcoffin, and inlerredjn the
But, it is urged that títere is no averment that the dead'body remained interred, at the time it was dug up by the defendant— That it only appears argumentatively. This would have been plausible, if there were no allegation of interment. That the defendant dug up the hody, would strongly imply that it was in a state capable of'being dug up ; that is, that it was interred. Yet this would be inference only. But when the indictment not only alleges that the defendant dug up, disturbed, disinterred and removed the dead body of Benjamin P. Calje, but also alleges that the same dead body had then lately been laid in a coffin,and inter-ced in the samo burying ground, it seems too much to call upon the court to presume, that, notwithstanding all these allegations,' the body might have been disinterred in the mean time, and not then capable of being dug up by the defendant.
It is hardly supposable that the defendant could ever have suffered at the trial, or been jeopardized, by the admission of any testimony, but what applied to the indictment, according to its most natural signification, and as was intended by the grand jury who presented the same. If proof had been offered of the disinterring of any other than a human body, or any other than the body of a man or boy of the name of Benjamin P. Calfe, it would have been excluded, as not supporting the indictment.
That technical notion of construing language, used in criminal prosecutions, which would exclude every common and reasonable intendment, seems, in modern times, to have been- exploded. In 2 Gal. Rep. 15, The United States vs. Batchelder, there was a motion in arrest after verdict, grounded on supposed defects in the indictment. Among others, not following the statute formed one objection. The word “violently” was substituted for “forcibly.” Indeed, there seemed to be no attempt to follow the statute in its language, only in its substance. The indictment was held sufficient. Judge Story there says, “It is not, in general, necessary, in an indictment for a statutable offence, to iollow the .exact wording of the statute. It is sufficient, if the offence be set forth with
The motion in arrest, in the case before the Court, is overruled,
