Cooprider v. State

Decision Date21 January 1941
Docket Number27460.
Citation31 N.E.2d 53,218 Ind. 122
CourtIndiana Supreme Court

Appeal from Circuit Court, Clay County; John W. Baumunk judge.

R V. Tozer, of Brazil, for appellant.

Samuel D. Jackson, Atty. Gen., and Warren W. Martin, Deputy Atty Gen., for appellee.


Appellant was tried by a jury, and convicted on an indictment, charging him with 'unlawfully, wilfully, mischievously and maliciously' removing a tombstone. This appeal is from a judgment on the verdict assessing a fine.

The only error assigned is the overruling of his motion for a new trial which contains two specifications, first, that the verdict is contrary to law, and, second, that the verdict is not sustained by sufficient evidence. These specifications are discussed together in the briefs, on the hypothesis that if the evidence is insufficient to sustain the verdict it is contrary to law. The statute defining the offense, Acts 1905 ch. 169, § 415, p. 584, § 10-4513, Burns' 1933, § 2498, Baldwin's 1934, is short, reading as follows:

'Whoever wilfully, mischievously or maliciously disfigures, defaces or removes any tombstone, monument, gravestone or other structure erected to perpetuate the memory of any deceased person, persons or event; or whoever wilfully, mischievously or maliciously disfigures, defaces or removes any fence, railing, structure, or any other work in or around any public or private monument, cemetery or burial place, or any tree, shrub or plant therein, shall, on conviction, be fined not less than five dollars ($5.00) nor more than five hundred dollars ($500), to which may be added imprisonment in the county jail not more than six (6) months.'

Appellant argues that there is no evidence either that he removed the tombstone, or that it was removed unlawfully, wilfully, mischievously and maliciously.

It appears from the evidence that the body of Larkin Lankford, in 1882, was buried on a 40-acre tract owned by him at his death, and a stone monument in four pieces about eight feet high, with his name and some dates thereon, was placed over his grave, remaining there until in August, 1939. The site of the grave was then within the town limits of Clay City, in the corner of a lot to which appellant claimed title. The evidence discloses some controversy as to whether the grave was in a tract dedicated as a public cemetery by Lankford's heirs and later quitclaimed by them to appellant's grantor as an abandoned cemetery after the town board of Clay City had ordered it vacated as an unfit place for burial. The body of Lankford had not been removed but the grave had been neglected, the upper part of the monument had fallen, and there is evidence that weeds and briars were growing around the stone. This condition existed on August 9th, 1939, when, from the testimony of Otis Kress, it appears that appellant had a conversation with Kress in which appellant asked Kress to plow the lot and move the tombstone, to which Kress replied that he didn't think he could 'pull it.' Kress plowed the lot but did not remove the stone.

The testimony of Levi Mishler is the only other evidence in the record as to the act of removal or appellant's connection therewith. Mishler testified on direct examination that on the 11th of August, 1939, he dragged the tombstone off the lot where it was erected. He was asked if he 'had a talk with George Cooprider regarding this tombstone before you drug it off,' to which he replied 'Just a very few words.' He then stated the conversation as follows: 'Well, he just asked me if I would go up there and do some work for him. He said he had a team up there that couldn't do the work. He sent a little boy up there with them and he couldn't do nothing with them. I said that I can do the work for you if there is no trouble or anything like that. He said there wasn't, so I just took my team and went up there and done the work.'

Mishler testified that nothing else was then said to him about the tombstone. On the 15th of August a further conversation with appellant was detailed by Mishler as follows: 'Well, when he come back and wanted me to go up and work the rest of the time to finish plowing discing and harrowing, I told him, I said, 'now if there is no trouble I can do the work alright.' He said there was no trouble whatever. That is about all he said to me.'

Inquiry was made as to his being paid, which he admitted. He then described the method of removal, a part of the monument by the use of the team hitched to a chain fastened around the stone, and 'the other piece I shoved.' The testimony then continues:

'Where did you take it to? I just drug it over--I would call it northeast from there about, I imagine it would be 50 or 75 feet.

'Did you drag all the tombstone over there? Yes sir.

'And you say now that you received some pay for that, did you? I got pay for it.

'Who paid you for it? George Cooprider.'

There was no cross-examination and the witness was excused but later recalled and testified as follows:

'I believe you said on direct examination that you had a conversation regarding this monument with Mr. Cooprider; that is, you had a talk with him, didn't you? Just a few words.'

Then follows testimony that the conversation and act of removal occurred in Clay County.

Appellant did not testify and we are without his version of the conversations.

It is proper to ascertain what must be proved before considering and determining the sufficiency of the proof.

The statute qualifies the act of removal by the words 'wilfully, mischievously or maliciously' stated disjunctively, but the indictment charges all conjunctively. It has been held that proof of any one of several acts forbidden and charged conjunctively will support a conviction. Howard v. State, 1921, 191 Ind. 232, 131 N.E. 403. See, also, Ewbank's Criminal Law, 2d Ed., § 327. We see no reason why this rule does not here apply.

There is no contention that the evidence shows malice in the sense of an evil intent without justifiable excuse. If appellant was guilty, it was because he was intentionally responsible for the doing of a forbidden act, even though done on land which he claimed to own and to have the right to use for farming purposes. It becomes necessary, therefore, to define the word 'wilfully' as used in this statute which, it seems, has not been involved in prior criminal appeals to this court.

We are not aided by the Indiana cases on malicious trespass cited by appellant. For ordinary trespass there is a civil remedy. A 'mischievous or malicious' intent is the only element that converts an ordinary trespass into a criminal offense and of course must be proved. The words 'wilful' or 'wilfully' are not found in the trespass statute. § 10-4509, Burns' 1933, § 2489, Baldwin's 1934.

In the civil case of Gary v. Gary, etc., Cemetery Ass'n, 1917, 186 Ind. 446, 116 N.E. 741, the question was the right to enforce a special assessment for city sewer against land used for a public cemetery. This court, through Myers, J., then said, 186 Ind. on page 454, 116 N.E. 741, on page 744: 'If it were shown that such assessment could not be satisfied without desecrating the graves and subjecting the purchaser to punishment under a penal statute of the state (Sec. 2309 Burns' 1914 [Acts 1905 p. 584, 679]), the assessment should not be sustained.'

The court so ruled, indicating the view that any conduct otherwise lawful and incidental to ownership of the land, which would result in the intentional disturbance of the grave...

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