Davis v. State

• Decision Date: 08 November 1939
• Docket Number: 27780.
• Citation: 6 S.E.2d 736,61 Ga.App. 379
• Parties: DAVIS et al. v. STATE.
• Court: Georgia Court of Appeals

6 S.E.2d 736

61 Ga.App. 379

DAVIS et al. v. STATE.

No. 27780.

Court of Appeals of Georgia, Division No. 1.

November 8, 1939

Rehearing Denied Dec. 16, 1939.

Syllabus by the Court.

Heath & Heath, of Douglas, for plaintiffs in error.

W Glenn Thomas, Sol. Gen., of Jesup for defendant in error.

GUERRY Judge.

Robert Lee Davis, Henry Davis, and Monroe Jones were jointly convicted in the superior court of Jeff Davis County, at the adjourned September term, 1938, upon the charge that the defendants "unlawfully and with force and arms; did remove from a certain grave in Morgan's Chappel Colored Cemetery, the body of Allen Hodge, wantonly and feloniously contrary to the laws of said State, the good order, peace, and dignity thereof." The defendants demurred to the indictment on the grounds that it did not charge any crime, or the removal of the body of a human being, or such body from a grave or other place of interment, or for the purpose of selling or dissecting it, or from mere wantonness. The court overruled the demurrer and the defendants excepted pendente lite. The defendants filed their motion for new trial which was overruled. The case is before this court on exceptions to the order overruling the motion for a new trial and the exceptions pendente lite to the order overruling the demurrer.

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 fence next to Jeff Davis County, that's pointed out as the line; the witness does not know whether the grave is in Appling 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 Appling counties, and testified that the graveyard (inclusive of the particular grave) is over in Appling 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, 105 Tenn. 177, 180, 58 S.W. 213, 51 L.R.A. 883, 80 Am.St.Rep. 875; 8 R.C.L. 694,§ 16. "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 Rex v. Gilles, 1 Russ. 464, Russ. & R. 366, note; and the disinterment of the body of a human being for the purpose of dissection was held to be indictable at common law in Rex v. Lynn, 2 Term R. 733. 1 Leach, 497, and in Kanavan's Case, 1 Me. 226 [1 Greenl. 226]." Thompson v. State, 105 Tenn. 177, 180, 58 S.W. 213, 51 L.R.A. 883, 80 Am.St.Rep. 875. "The unauthorized disinterring of the body of a deceased human being is an indictable offense both at common law and by statute, regardless of the motive or purpose for which the act is done." 8 R.C.L. 694, § 16. The section under which the indictment in the instant case was drawn, was codified from the Acts of 1887, page 87, and bears striking similarity to a New York statute, 3 Rev.St. 6th Ed. p. 965, given under the following quotation: "Every person who shall remove the dead body of any human being from the grave, or other place of interment, for the purpose of selling the same, or for the purpose of dissection, or from mere wantoness, upon conviction shall be punished by imprisonment in a State's prison." Rhodes v. Brandt, 21 Hun, N.Y., 1, 3.

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. In Meads v. Dougherty County, 98 Ga. 697, 25 S.E. 915, it was held that "a lot of bones, bleached by time," found casually upon the bank of a creek, did not constitute "a dead body" within the purview of the Act of 1893, p. 116, requiring coroners to hold inquests upon the dead bodies of human beings, relative to determining the cause of death coming within the inquiry of the statute whether the death had been "violent, sudden or casual," or in the absence of witnesses or an attending physician. Yet, whatever may have been the juridic value of the above holding, we find the court in Floyd County v. Miller, 4 Ga.App. 1, 3, 60 S.E. 823, 824, observing: "In the Meads Case the few bleached bones that had been washed upon the banks of the creek were held not to constitute a dead body, and very naturally the opinion was expressed that it was not apparent from these bones that violence had caused the death. All that was said, however, in the Meads Case, was mere obiter dicta." In a New York case we find with reference to a dead body being exhumed by next of kin so that a portion of the body might be removed and used for evidentiary purposes in a trial for malpractice, the court held that "it did not constitute a removal of the body for the purpose of dissecting, or from mere wantonness, as these terms were used in the statute." 17 C.J. 1150, § 33; Rhodes v. Brandt, 21 Hun, N.Y., 1. It appears that the court was passing upon the purpose of the removal, rather than the question whether a removal of a part was within the inhibitions of the law against removal of the whole. While all references in Georgia or other jurisdictions seem to refer to the subject matter of removal simply as a "dead body," there inheres in the authorities upon the subject no reason in law or logic why the prohibition against removal of the body of a dead human being does not apply equally to any part thereof. Otherwise the law would be inane in permitting unbridled robbing of graves and the wanton use of and trafficking in dead bodies, provided only some small part of the body yet remained to stay the processes of the law.

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.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...