State v. Bradbury

• Decision Date: 11 December 1939
• Parties: STATE v. BRADBURY.
• Court: Maine Supreme Court

9 A.2d 657

STATE

v. BRADBURY.

Supreme Judicial Court of Maine.

Dec. 11, 1939.

Exceptions from Superior Court, York County.

Frank E. Bradbury was convicted of indecently burning a dead human body, and he brings exceptions.

Exceptions overruled.

Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.

Joseph E. Harvey, Co. Atty., of Biddeford, for the State.

Hilary F. Mahaney, of Biddeford, for respondent.

THAXTER, Justice.

The respondent, Frank E. Bradbury, lived with an unmarried sister, Harriet, in a two and a half story building situated on Main Street in the City of Saco. They were old people and the last survivors of their family. In June 1938 Harriet was in failing health. She appears to have suffered some injury from a fall and during the night of June 9th she remained in a reclining chair in the front room of their home. About four o'clock in the morning of June 10th she died. The respondent thereupon built a hot fire in the furnace in the basement of the house, tied a rope around the legs of his sister's body, dragged it down the cellar stairs, shoved it into the furnace and burned it. It was impossible to get it all into the fire box at once, but as the head and shoulders were consumed, he forced it in farther and farther until he was able to close the furnace door. Reverend Ward R. Clark, who lived in the house next door, testified that during the morning of June 10th a heavy, dark smoke, with a very disagreeable odor poured from the chimney of the house. The next day an investigation was made by the authorities, who asked the respondent to show them the remains of his sister. Going to the basement of the house, he took down the crank used for shaking down the furnace, turned over the grates, shovelled out the ashes and said: "If you want to see her, there she is." A few bones were found; the rest of the body had been consumed.

The indictment charged that the respondent "with force and arms, unlawfully and indecently did take the human body of one Harriet P. Bradbury, and then and there indecently and unlawfully put and place said body in a certain furnace, and then and there did dispose of and destroy the said body of the said Harriet P. Bradbury by burning the same in said furnace, to the great indecency of Christian burial, in evil example to all others in like case offending, against the peace of said State and contrary to the laws of the same."

At the close of the evidence the respondent's counsel filed a motion for a directed verdict which was denied, and after conviction filed a motion in arrest of judgment which was likewise denied. To each of such rulings an exception was taken.

The facts are not in dispute. The motion in arrest of judgment presents the issue as to whether the indictment sets forth any crime, the motion for a directed verdict whether the evidence which supports the allegations of the indictment establishes any crime. The question in each case is the same.

The offense is not covered by the provisions of Rev.Stat. 1930, Ch. 135, Sec. 47, which makes it an offense to disinter, to conceal, to indecently expose, to throw away or to abandon a human body; and it is important to note that the indictment does not charge the violation of any statute. The question for us to decide is whether this was a crime under the common law.

Judge Holmes, in speaking of the common law as applicable to crimes, has well said: "The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong." Holmes, Common Law, p. 41. And in Pierce v. Proprietors of Swan Point Cemetery, 10 R.I. 227, 14 Am.Rep. 667, a case involving rights of sepulture, the court discusses the application thereto of the principles of the common law and quotes from a report published in 1836 by Joseph Story, Simon Greenleaf and others on the Codification of the Laws of Massachusetts. With reference to the common law, this says in part: "'In truth, the common law is not in its nature and character an absolutely fixed, inflexible system, like the statute law, providing only for cases of a determinate form, which fall within the letter of the language, in which a particular doctrine or legal proposition is expressed. It is rather a system of elementary principles and of general juridical truths, which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade and commerce, and the mechanic arts, and the exigencies and usages of the country.'"

It is because the common law gives expression to the changing customs and sentiments of the people that there have been brought within its scope such crimes as blasphemy, open obscenity, and kindred offenses against religion and morality, in short those acts which, being highly indecent, are contra bonos mores. Rex v. Lynn, 1 Leach's Crown Cases, 497; Bishop's Criminal Law, 9 ed. Ch. XXXVI; 49 Harv.L.Rev. 593.

The proper method for disposal of the dead has been regulated by law from earliest times, on the continent of Europe by the canon law, and in England by the ecclesiastical law. See Pierce v. Proprietors of Swan Point Cemetery, supra, 10 R.I. 235 et seq., 14 Am.Rep. 667; Larson v. Chase, 47 Minn. 307, 50 N.W. 238, 14 L.R.A. 85, 28 Am.St.Rep. 370; Anderson v. Acheson,...