State v. Doepke

• Decision Date: 31 October 1878
• Citation: 68 Mo. 208
• Parties: THE STATE v. DOEPKE, Appellant.
• Court: Missouri Supreme Court

68 Mo. 208

THE STATE

v.DOEPKE, Appellant.

Supreme Court of Missouri.

October Term, 1878.

Appeal from St. Louis Court of Appeals.

This was an indictment for stealing a rosewood coffin of the value of $35, the property of one Merkel. It appeared in evidence that Merkel had bought the coffin for $35 for the purpose of burying his father-in-law, Gerhard Doll; that it was used for that purpose by Merkel's order that on the night after the burial defendant opened the grave and took out both the body and the coffin; that there had been no administration upon the estate of Doll; that when defendant was arrested the body was out of the coffin, and both the coffin and the body were in a wagon; that defendant stated that he was taking the body to be dissected. Evidence was introduced by the defense tending to show that there was no marketable value for secondhand coffins, or for such as had been used for burial purposes, and that there was no place where such coffins were bought or sold; that a coffin in which a corpse had been buried was of no value or use except for the purpose for which it was first used.

The jury found the defendant guilty of grand larceny and fixed his punishment at imprisonment in the penitentiary for two years. A motion for a new trial was made and overruled, and the defendant appealed to the St. Louis court of appeals, which affirmed the judgment of the criminal court. He then appealed to this court.

C. C. Simmons and J. J. McBride for appellant.

J. L. Smith, Attorney-General, for the State.

1. COFFIN--STEALING IS LARCENY: statutes construed.

HENRY, J.

It is conceded by counsel for appellant, and fully established by the authorities, that a coffin in which the remains of a human being were interred, was a subject of larceny at common law. It is contended, however, that sections 11, 12, 13 and 14, of our act concerning crimes and punishments, Wag. Stat., pp. 500, 501, “stand in lieu of the common law as it existed in reference to the question under consideration, and that the acts alleged to have been committed by the defendant in this case, amounted to nothing more than a statutory misdemeanor.” Section 11 provides a punishment for removing the remains of a human being from the grave, or other place of interment. Section 12 makes it a misdemeanor for any one to receive such remains, knowing them to have been disinterred contrary to the provisions of the preceding section. These sections, it might be contended with plausibility, have superseded the common law in regard to the exhumation of the remains, but have no bearing upon the question of stealing a coffin or grave clothes. It was not larceny at common law to take a dead body from its place of interment, under any circumstances, but it was a misdemeanor, and as sections 11 and 12 expressly provide a punishment for that offense, as also for receiving the dead body, those sections may be taken to stand in lieu of the common law in relation to the removal of the remains of the dead.

Section 13 provides that “every person who shall open the grave or other place of interment, or sepulture, with intent to remove the dead body or remains of any human being for any of the purposes specified in section 11 of this chapter, or to steal the coffin or any vestment, or other article, or any part thereof interred with such body, shall, on conviction,” &c. This section provides a punishment for an attempt to remove the remains or to steal the coffin or any article interred with the body. There is no enactment in regard to stealing a coffin, and with what propriety can it be said that the Legislature having prescribed a punishment for one offense, which was punishable at common law, has thereby repealed the common law in regard to a different and higher grade of offense? By the common law it was larceny to steal a coffin in which the remains of a human being were interred. It was at common law also a misdemeanor to attempt to commit that offense, and the argument urged here is, that inasmuch as our Legislature has provided a punishment for the misdemeanor it has thereby entirely superseded and abolished the common law as to the felony. We may not appreciate the force of the argument, but it comes far short of securing our assent to the proposition. That the stealing of a coffin is still larceny in this State is recognized in section 13, wherein it provides a punishment for the attempt to steal a coffin. We therefore conclude that notwithstanding the enactment of those sections a coffin in which the remains of a human being are interred is still a subject of larceny in this State.

2. PLEADING, CRIMINAL.

It is insisted that the indictment is defective in failing to negative the exceptions contained in section 14. This question has been otherwise determined by repeated decisions of this court, and recently in the State v. O'Gorman, 68 Mo. 179.

3. _______: property in a coffin.

The coffin was alleged in the indictment to be the property of one Merkel, a son-in-law of the deceased, and it is contended that when he had the body interred he parted with all the property he had in the coffin, and that, therefore, the conviction of defendant cannot be sustained. Roscoe, in his work on criminal evidence, says: “A shroud stolen from the corpse must be laid to be the property of the executor, or of whoever else buried the deceased;” p. 604, (6th Am. Ed); 1 Chitty Crim. Law, (5th Am. Ed.) 44; 1 Hawkins, P. C., 144, 148; Sharswood's Black., 4th vol., 235. All these authorities, it is true, speak only of shrouds and ornaments buried with the dead, but the principle upon which these may be alleged to be the property of the executor, or of the person who buried the deceased, will certainly sustain an allegation that the coffin is the property of the person who buried the deceased.

4. LARCENY: value of property.

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