State v. Highland

Decision Date15 October 1912
PartiesSTATE. v. HIGHLAND.
CourtWest Virginia Supreme Court

(Syllabus by the Court.)

1. Homicide (§ 331*) — Disinterment of Body of Deceased—Discretion of Court-—Review.

If a court, in a murder prosecution, has power to order the body of the deceased to be disinterred, for examination for evidential purposes; it is only when to do so is plainly necessary and essential to the justice and fairness of trial, and is a matter in the discretion of the court, and its refusal to make such order is, as a rule, not reviewable as cause for reversal.

[Ed. Note.—For other cases, see Homicide, Cent. Dig. § 698; Dec. Dig. § 331.*]

2. Disinterment of Dead Body fob Evidence.

Has a court, in a prosecution for murder, power to order the body of the deceased to be taken from its grave for examination, for the purpose of evidence on the trial?

Error to Circuit Court, Randolph County.

Homer Highland was convicted of voluntary manslaughter, and brings error. Affirmed.

Talbott & Hoover and C. H. Scott, all of Elkins, for plaintiff in error.

Wm. G. Con-ley, Atty. Gen., for the State.

BRANNON, P. Homer Highland was convicted of voluntary manslaughter upon an indictment in the circuit court of Randolph county charging him with the murder of

James F. Herron. He was upon a first trial found by a jury guilty of murder in the first degree, with recommendation that he be punished by confinement in the penitentiary. A new trial was granted him. When the case was called for a second trial he moved the court for an autopsy of Herron's body, and asked that the court order the body to be disinterred that such autopsy might be had; but the court refused to make such order.

We have presented to us for the first time the question whether a court can, on a murder trial, at the motion of an accused, order the dead body of the victim of the crime to be exhumed for examination for evidence purposes. Can it, without the consent of the kindred of the dead, invade the sacred precincts of the cemetery, and tear open the grave, and tear open again and lacerate afresh the hearts of those that loved him, and to whom his memory is sacred and dear? With what reverence do we all regard the graves of our dead, and each returning spring cover them with beautiful flowers. There is an instinct planted by nature in the human breast to feel a strong aversion—almost horror—at the desecration of the grave. The maxim "Requiescat in pace" (Let him rest in peace) speaks this feeling. The great dramatist impressively tells this tender emotion in the prayerful epitaph written by his own hand for his tombstone:

"Good friend, for Jesus' sake forbear To dig the dust enclosed here; Blest be the man that spares these stones, And cursed be he that moves my bones."

It is said that the conquering Moslem respected the graves of Abraham, Isaac, and Jacob, and Sarah, Rebekah, and Leah, their wives, by abstaining from the removal of their bodies from Macphelah, when building a mosque. Genesis, xlix, 31. Diogenes and his diciples regarded burial with contempt, and held it unimportant whether bodies should be burned by fire or devoured by beasts, birds, or worms; and some modern French philosophers descanted upon the "glorious nothingness" of the grave and that "nameless thing, " a dead body; but the human heart and the secular jurisprudence of civilized nations in our day regard the grave and its body in much higher esteem. It was a misdemeanor at common law to disinter a dead body. Our Code enforces this sentiment by punishment in the penitentiary of one unlawfully disinterring a dead body.

For some purposes the law respects and enforces the right of next of kin as to a dead body. So much that even a surviving wife or husband cannot remove a body, after it is once buried, against their will. Wynkoop v. Wynkoop, 42 Pa. 293, 82 Am. Dec. 506; Peters v. Peters, 43 N. J. Eq. 140, 10 Atl. 742; In re Richardson, 29 Misc. Rep. 367, 60 N. Y. Supp. 539. The common law says that there can be no property in a dead body. 2 Blackstone, 429; Louisville & N. R. Co. v. Wilson, 123 Ga. 62, 51 S. E. 24, 3 Ann. Cas. 129. Though the minister at the grave says, "Dust to dust, ashes to ashes, " thus seeming to make the remains a part of the soil, Blackstone there says that, though the heir has property in the monuments of his ancestors, "yet he has none in their bodies or ashes, " and cannot sue one for disturbing the remains. I would question this at this day. I think he could bring trespass or injunction.

Even now we cannot say that the heir or next of kin has strictly property in the remains; but they have property in a sense, such as will give them in law right of burial, protecting the graves, and the like. They can prevent unlawful removal, as will appear in the full discussion of rights of kindred in 3 Ann. Cas. 128, and full note page 132. The notable case of Pierce v. Proprietors of Swan Point Cemetery, 10 R. I. 227, 14 Am. Rep. 667, holds that, "while a dead body is not property in the strict sense of the common law, it is quasi property, over which the relatives of the deceased have rights which the courts will protect." I find much law to that effect. In view of such right in relatives, I doubted the right of a court to invade the grave in a criminal prosecution to which the relatives were not parties. And I find a federal Circuit Court holding that a court has no power to order the exhumation of a dead body in an action at law to which the widow, who has a right to control the body, is not a party, but that a court of equity may, she being a party. Mutual Life Ins. Co. v. Griesa (C. C.) 156 Fed. 398. If we follow our mere sentiment or emotion, we would deny even a court this power. But there is the call of justice, and the principle that a court can take those steps essential to administer justice, as an organ of the government.

Let us see, further, as to this power. Note that the Code of 1906, c. 149, § 13, makes it a felony to "unlawfully disinter" a dead human body. Surely a coroner had power to disinter to hold an inquest. 2 Hale, Pleas of Crown, 58. His inquest must be super visum corporis (on view of the body), and this calls for exhumation. 2 Hale, 66; 2 Hawkins, Pleas of Crown, § 23; 5 Ency. PI. & Pr. 46. Some authorities hold that the court has such power of disinterment for evidentiary purposes. Grangers' Life Ins. Co. v. Brown, 57 Miss. 308, 34 Am. Rep. 446; 14 Ann. Cas. 471; Cohen v. Congregation, 114 App. Div. 117, 99 N. Y. Supp. 732. In Moss v. State, 152 Ala. 30, 44 South. 598, the court said that if it had the power to exhume, the matter was in the discretion of the court, and its refusal not reviewable. It is laid down in 5 Ency. PI....

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10 cases
  • State v. McGuire, 23671
    • United States
    • Supreme Court of West Virginia
    • 18 Julio 1997
    ...... Indeed, as we discussed in dicta in State v. Highland, 71 W.Va. 87, 76 S.E. 140 (1912), "the trial court in proper cases of imperative necessity has inherent power to order disinterment of a body in trials for murder to ascertain the truth respecting the homicide, in due administration of justice.." 71 W.Va. at 91, 76 S.E. at 141 (citation omitted). ......
  • State v. McKenzie, 22976
    • United States
    • Supreme Court of West Virginia
    • 18 Julio 1996
    ......Highland, 71 W.Va. 87, 76 S.E. 140 (1912). .         5. "Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; ......
  • Whitehair v. Highland Memory Gardens, Inc., 16247
    • United States
    • Supreme Court of West Virginia
    • 1 Marzo 1985
    ......state a claim upon which relief could be granted. For the reasons set out, we reverse the judgment.         Because this case was dismissed under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, we apply the traditional standard set out in Syllabus Point 3 of Chapman ......
  • In re West, 16-0410
    • United States
    • Supreme Court of West Virginia
    • 6 Junio 2017
    ...of the circuit court's final order and ultimate disposition in the exercise of its inherent powers in equity. See State v. Highland , 71 W.Va. 87, 92, 76 S.E. 140, 142 (1912) (no abuse of discretion when circuit court refused to allow disinterment of remains for evidentiary purposes in a mu......
  • Request a trial to view additional results

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