Thompson v. State

• Decision Date: 25 June 1900
• Parties: THOMPSON et al. v. STATE.
• Court: Tennessee Supreme Court

58 S.W. 213

105 Tenn. 177

THOMPSON et al. v. STATE.

Supreme Court of Tennessee.

June 25, 1900

Appeal from criminal court, Shelby county; L. P. Cooper, Judge.

E. D and Frank Thompson were convicted of attempting to sell a dead body for dissection, and they appeal. Affirmed.

John T Moss and M. B. Norfleet, for appellants.

The Attorney General, for the State.

CALDWELL J.

Frank Thompson and E. D. Thompson are under conviction for a joint attempt to dispose of and sell for profit and gain to themselves, the dead body of Jennie McGuire, a pauper, which was intrusted to them for burial; and the punishment assessed against each of them is a fine of $750, and imprisonment in the county workhouse for the period of 11 months and 29 days. Having appealed in error, they seek a reversal for numerous reasons assigned by their counsel.

It is said in the first place that the indictment charges three separate offenses in one count: (1) Failure to bury; (2) conspiracy not to bury, but to sell; (3) attempt to sell,-- and hence that the motion to quash should have been sustained in the lower court, and should now be sustained in this court. The indictment does state that the body in question was delivered to E. D. Thompson, county undertaker, for burial; that he and Frank Thompson confederated and conspired not to bury, but to dispose of it for profit and gain to themselves, and that thereupon they packed it in a trunk and shipped it away for the purpose of sale, etc. Yet the true legal import of the charge, when rightly interpreted, is that the two defendants made a joint and unlawful attempt to dispose of the body for profit and gain to themselves. That is the real gravamen of the state's action, so to speak the other parts being in the nature of mere description or inducement, and largely unnecessary. It is an indictment on the facts of the case, with some superfluity of narration. The statement of the failure to bury the body is not to be taken as a separate and distinct charge, but rather as a mere narrative of a fact leading up to the offense of shipping the body away for unauthorized sale; and the other statement that the defendants confederated and conspired not to bury, but to sell, the body, is only an over-formal charge of joint action on their part in the attempted sale, and not an independent charge of unlawful conspiracy.

Then does the indictment, so interpreted and limited, charge an offense cognizable in a criminal court? Confessedly, we are without a statute creating such an offense. Hence, unless it existed at common law, or can properly be evolved from the principles of the common law, either of which would be sufficient, it does not exist at all. 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. 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. These cases, and many others with kindred rulings, are cited and more elaborately stated on pages 391, 392, Rosc. Cr. Ev., on page 464, 1 Russ. Crimes, and in note "A," State v. McLean (N. C.) 42 L. R. A. 733 (s. c. 28 S.E. 140). One of the other cases is more closely related to that now before the court. Of it Roscoe says: "In Reg. v. Feist, Dears. & B. Cr. Cas. 590, 27 Law J. M. Cas. 164, the defendant was the master of a workhouse, and had lawful possession of the bodies of deceased paupers. He was in the habit of having the appearance of a funeral gone through, with a view of preventing the relatives requiring that the bodies should be buried without being subject to anatomical examination; and the jury found that but for that deception the relatives would have required the bodies to be so buried. The bodies, instead of being buried, as was supposed by the relatives, were delivered to a hospital for the purpose of undergoing anatomical examination, and for this service the master received from the hospital a sum of money. The prisoner was found guilty of an offense at common law, in disposing of a body for dissection." But the appellate court, though approving that finding, held that he was protected by statute. Rosc. Cr. Ev. p. 392. Bishop, in the course of his chapter on "Protection to the Public Morals, Religion, and Education," employs the following language, namely: "Moreover, as tending to corrupt the public morals, and as disturbing the sensibilities of the people, are such acts as casting the dead body of a human being into...