105 Tenn. 177 | Tenn. | 1900
Prank Thompson and E. D.. Thompson are under conviction for a joint attempt to dispose of and sell for profit and gain to themselves the dead body of Jennie McGuire, a pauper, which was intrusted to them for burial;, and the punishment assessed against each of them is a , fine of $750 and imprisonment in the-county workhouse for the period of eleven months- and twenty-nine days.
Having appealed in error, they seek a reversal for numerous reasons, assigned by their counsel. It is said, in the first place, that the indict-
The indictment does state that the body in question was delivered to E. D. Thompson, County Undertaker, for burial; that he and Erank Thompson confederated and conspired not to bury, but to dispose of it for profit and gain to themselves, and that thereupon they packed it in a trunk and ■ shipped it away for the purpose of sale, etc., yet the true legal import of the charge, when rightly interpreted, is that the two-defendants made a joint and unlawful attempt to dispose of the body for profit and gain to themselves ; that is the real gravamen of the State’s-action, so to speak, the other parts being in the nature of mere description or inducement, and largely unnecessary. It is an indictment on the facts of the case, with some superfluity of narration. The statement of the failure to bury the body is not to be taken as a separate and distinct charge, but rather as a mere narrative of a fact leading up to the offense of shipping the body away for unauthorized sale; and the other statement that the defendants confederated’ and conspired not to bury, but to sell the body, is-, only an over-formal charge of joint action on
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.
The willful, unlawful, and indecent taking and carrying away of the dead body of an unknown person, with the intent to sell and dispose of the same for gain and profit, to the scandal and disgrace of religion and in contempt of the laws and customs of the realm, was held to be an indictable offense in R. v. Gilles, 1 Russ, on Crimes, 464. And the disinterment of the body of a human being for the purpose of dissection was held to be indictable at common law in R. v. Lynn, 2 T. R., 733; 1 Leach, 497, and in Kanavan’s case, 1 Me., 226. These cases, and many others with kindred rulings, are cited and more elaborately stated on pages 391 .and 392 of Roscoe’s Criminal Evidence, on page 464 of 1 Russell on Crimes, and in note A, 42 L. R. A., 733. One of the other
Bishop, in the course of his chapter on “Protection to the Public Morals, Religion, and Education,” employs the following language, namely: “Moreover, as tending to corrupt the public morals, and as disturbing the sensibilities df the people, are such acts as casting the dead body of a human being into the river without the rites of Christian sepulture: the stealing of a corpse; the digging of it up, where buried, or
It is broadly stated by numerous authorities that every attempt to commit a felony or a misdemeanor, whether the attempted offense be such at common law or by statute, is itself a misdemeanor at common law. Clark’s Cr. Law, 104; Roscoe’s Cr. Evi., 282; Bish. Cr. Law, Sec. 683; 1 Russ. on Crimes, 47, and citations by all of them.
Bishop says, however, by way of exception or qualification, that “no mere attempt to commit some of the smaller misdemeanors is a sufficient dereliction from duty to be indictable” (Sec. 684), and that “some offenses cannot have the appendage of attempt because of their little magnitude.” Sec. 687.
The substance of the rule enunciated in the second edition of the Am. & Eng. Enc. of Law, Vol. 8, pp. 252, 253, is that an attempt to commit a misdemeanor is not indictable at common law, when the offense attempted is merely malum prohibitum, but only when it is malum in so, and that some misdemeanors that are mala in se
This Court held, in Whitesides v. The State, 11 Lea, 474, that an attempt to commit a misdemeanor that “is purely statutory” is not indictable at the common law.
But, without multiplying citations or dwelling further upon the contrariety of opinion in the particulars indicated, it may be safely stated that the authorities are harmonious on the proposition that the unauthorized disposition and sale of the dead body of a human being for gain and profit, is a common law misdemeanor of high grade, and malum, in se, and that an unsuccessful attempt to commit that offense is itself a misdemeanor, indictable and punishable at the common law.
It follows, therefore, that the present indictment, which charges such attempt, and that only, is good, and that the motion to quash was properly overruled.
The other objections urged against the .judgment below do not require elaborate consideration. Of those directed against the Court’s rulings as to the admissibility of certain evidence and against the charge to the jury, it is sufficient to say, generally, that none of them present any reversible error.
The evidence of guilt on the part of each defendant is plenary. It shows that Jennie McGuire, a white woman and pauper, died in the
The defendants are not protected by Chapter 206 of the Acts of 1899, which provides for the disposition of certain unclaimed bodies, because they made no effort to comply with the requirements of that Act, but pursued their own course without reference to it. They are equally without the protection of the last clause of § 6775 of Shannon’s Code, which authorizes dissection “by consent of relatives,” for they had no such consent. The only surviving relative of Jennie Mc-guire, so far as known, was a brother residing
It is of no legal consequence that Erank Thompson may have been but an employee of his co-defendant, nor that one of them may have done more than the other in unlawful effort to dispose of and sell this body, since the criminal law does not recognize the civil relation of principal and agent, and treats all participants in the commission of misdemeanor as joint principals. Atkins v. State, 95 Tenn., 474; Whitesides v. State, 11 Lea, 475.
The offense of which the defendants have been convicted is punishable by both fine and imprisonment, or by either (1 Bish. Cr. L., See. 719), and after the jury had found them guilty and assessed a fine against them, it was within the province of the trial Judge, in the exercise of a sound discretion, to superadd imprisonment as he did.
Though joint actors in the commission of the same offense, and jointly tried and convicted, it
Let the judgment be affirmed.