State v. McLean
| Decision Date | 09 November 1897 |
| Citation | 28 S.E. 140 |
| Parties | STATE v. McLEAN et al. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Alamance county; Allen, Judge.
C. E McLean, J. H. Heritage, J. C. Holt, and others were indicted for counseling, procuring, and commanding certain named persons to do an act, the committing of which afterwards was a felony. Defendants Heritage and Holt were acquitted. The others were found guilty, and appeal from the judgment of conviction. Affirmed.
The first, third, and fifth prayers for instructions were as follows:
The act of the mayor and the commissioners was outside of their official jurisdiction, and hence they were individually liable to indictment for commanding and procuring persons to commit a felony.
E. S Parker, J. T. Morehead, W. H. Carroll, John G. Bynum, and T B. Womack, for appellants.
The Attorney General, for the State.
The disturbing of graves, by chapter 90 of the Acts of 1885, is made a felony, in the following words: The defendants were indicted, under section 977 of the Code, for counseling, procuring, and commanding certain named persons, all of them charged with acting without due process of law, and without the consent of those persons whom the statute requires should be consulted, and their consent procured, to open the grave of Nathaniel Small, for the purpose of taking therefrom his dead body, and to actually remove the body from the grave. The defendants Holt and Heritage were acquitted. At the time the offense was committed the defendant McLean was mayor of the town of Burlington, the defendant Cates was keeper of the town cemetery, and the other defendants, Staley, Sellars, Hall, Pickett, Sutphin, and Hughes, were town commissioners. The defense set up by McLean was that he was the attorney at law of the town, and that the part he took in the matter was simply as legal adviser to the board of commissioners. He admitted on the trial that he advised the other defendants that they could lawfully remove the body. The other defendants, except Holt and Heritage, undertook to defend their action on the ground that, although they commanded, counseled, and procured the opening of the grave and the removal of the body, their action was in the discharge of their official duties, and under due process of law, and in good faith. The following facts were made clear on the trial, and were undisputed: Small died in 1887, and was buried in the Lutheran Cemetery in the town of Burlington. Several years afterwards the town authorities, by consent of all persons interested, at the expense of the town, removed the bodies which had been buried in the Lutheran Cemetery to Pine Hill, the town cemetery. The body of Small was among the number removed, and it was reinterred in a lot in Pine Hill. On the 5th of January, 1897, a considerable time after the reinterment of Small's body, the town authorities, who were the defendants in this prosecution, in regular meeting adopted a report made by the committee on the business of the cemetery, which was in part in the following words: That J. W. Small, the next of kin of Nathaniel Small, received on February 1, 1897, a note addressed to him by the town authorities, in the following words: That J. W. Small declined to pay the amount, and forbade the removal of the body. That the body was removed from the lot on which it was buried, in Pine Hill Cemetery, to the free part of the cemetery.
The first assignment of error on the part of the defendants relates to the refusal of his honor to admit testimony offered to show the good faith and bona fides of the defendants in the matter of their having ordered, procured and commanded the opening of the grave and the removal of the body. The question, then, is whether or not it is necessary to allege and prove a felonious intent, or, indeed, any specific intent, on the part of the defendants, other than the intent to do that which they actually did, and which was forbidden by the statute, in language plain and certain. There are many decisions of this court to the effect that the only intent necessary to be shown in the doing of an act which is forbidden by law is the intent to do the act. If, however, a grave should be opened, and a dead body removed therefrom, by a person who had made an honest mistake as to identity of the grave and body, after having received the permission of the next of kin of the person whose grave he thought he was opening, in such case the intent would not exist to do the act. But in the case before us the defendants did exactly what they intended to do. They knew whose body they had commanded to be removed, they knew the assigned reason for which it was ordered to be removed, and they knew that the removal was opposed by the next of kin. In State v. Smith, 93 N.C. 516, it is said by the court: "It was not required of the state to prove more than that the forbidden act was intentionally done." And in the same opinion the chief justice quotes the language used by the court in State v. King, 86 N.C. 603: "When an act forbidden by law is intentionally done, the intent to do the act is the criminal intent which imparts to it the character of an offense; and no one who violates the law, which he is conclusively presumed to know, can be heard to say that he had no criminal intent in doing the forbidden act." In State v. McBrayer, 98 N.C. 619, 2 S.E. 755, it is held that: "When the statute plainly forbids an act to be done, and it is done by some person, the law implies conclusively the guilty intent, although the offender was honestly mistaken as to the meaning of the law he violates." "When the language is plain and positive, and the offense is not made to depend upon the positive, willful intent and purpose, nothing is left to interpretation." "The criminal intent is inseparably involved in the intent to do the act which the law pronounces criminal." State v. Voight, 90 N.C. 741. To the like effect are the decisions in State v. Kittelle, 110 N.C. 560, 15 S.E. 103; State v. Downs, 116 N.C. 1064, 21 S.E. 689; State v. Chisenhall, 106 N.C. 676, 11 S.E. 518; State v. Scoggins, 107 N.C. 959, 12 S.E. 59. The counsel of defendants admitted that it was not necessary, in trial for misdemeanors, to allege and prove any specific intent, where the act was forbidden by statute, but they insisted that the rule did not apply in cases of felony. We cannot, upon reason or authority, see the distinction attempted to be drawn. In felonies, at common law (except those in which malice is presumed), the intent has to be proved, for the reason that the doing of the act itself which constitutes the offense, in so many words, is not denounced. As, for instance, upon the trial of one indicted for larceny the felonious intent must be proved, because the taking of the goods might be shown to have been done by way of trespass, or under a bona fide claim of right. The law does not make the taking of the goods larceny. The taking might be under a claim of right, or in the way of trespass. But it makes the taking of the goods with a felonious intent the crime of larceny. In the case before us the law denounces as a felony the very act itself which the defendants committed. We see no reason why the legislature should not, equally in misdemeanors and in felonies, make the forbidden act itself conclusive as to the intent with which it is done. But we have an authority directly on the point. In State v. Chisenhall, 106 N.C. 676, 11 S.E. 518, where the defendant was indicted for abduction, the court held...
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