Walton v. Commonwealth

• Decision Date: 01 March 1948
• Citation: 46 S.E.2d 373,187 Va. 275
• Parties: WALTON . v. COMMONWEALTH.
• Court: Virginia Supreme Court

46 S.E.2d 373

187 Va. 275

WALTON .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 1, 1948.

Error to Circuit Court, Wise County; George Morton, Judge.

W. J. Walton was convicted of engaging in the unlawful practice of the profession of funeral director and undertaker, and he brings error.

Reversed and case dismissed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Campbell & Campbell, of Lynchburg, and Bandy & Bandy, of Kingsport, Tenn., for plaintiff in error.

Harvey B. Apperson, Atty. Gen., and Ballard Baker, of Richmond, for the Commonwealth.

GREGORY, Justice.

The plaintiff in error, W. J. Walton, was tried upon a criminal warrant in which he was charged with a violation of Chapter 72 of the Code of Virginia 1942 (Michie), Secs. 1715 to 1736, inc., which treats of embalming and funeral directing. The case was heard by the judge without the intervention of a jury and Walton was found guilty "as charged in plaintiff's warrant, " and his punishment fixed at a fine of $50.

The original warrant in the case charged that "W. J. Walton, in said county, did on the 25th day of November, 1946, unlawfully remove and prepare for burial the body of Ella Wright Cole, and did bury the same in Wise county, Virginia, without having a license so to do from the Virginia State Board of Embalmers and Funeral Directors." Just before the trial the attorney for the Commonwealth moved to amend the warrant, which was done over the objection of counsel for the accused. As amended, the warrant reads that Walton "did unlawfully practice the profession of a funeral director, undertaker and embalmer, and as such did remove and prepare for burial the body of Ella Wright Cole, and did bury the same in Wise county, Virginia, without having a license so to do from the Virginia State Board of Embalmers and Funeral Directors * * *."

The attorney for the Commonwealth in offering the amendment stated to the court that he did not think the original warrant was sufficient to charge the crime.

Walton is a resident of Kingsport, Ten nessee, where he is employed by the Huff Funeral Home. By profession he is an. embalmer and funeral director and licensed as such under the laws of the State of Tennessee, but he holds no license to practice that business or profession from the Virginia State Board of Embalmers and Funeral Directors.

Mrs. Ella Wright Cole died at the Appalachian General Hospital in Appalachia, Virginia, and her body was removed from the hospital, not by Walton, but by others, to Kingsport, Tennessee. Walton had nothing to do with the removal of the body. When the body reached Kingsport, Walton embalmed it. From the evidence this seems to have been the only service performed by him. There is no evidence that he engaged in the other preparations of the body for burial. He did return the body to Big Stone Gap Virginia, after it had been embalmed and prepared for burial in Kingsport, Tennessee, and he had charge of the funeral and burial at Big Stone Gap. It is contended that, inasmuch as he conducted this one funeral and burial in Virginia without a license from the Virginia State Board of Embalmers and Funeral Directors, he was guilty of a violation of the Virginia Embalmers Act. Does the one isolated act constitute a violation of the Virginia statute regulating the embalming and interment of dead human bodies, and constitute the unlawful practice of the profession of a funeral director, undertaker and embalmer?

The court found the accused guilty "as charged in the plaintiff's warrant." The charge in the amended warrant as we have seen was that Walton did "unlawfully practice the profession of a funeral director, undertaker and embalmer * * *."

There are four assignments of error but we think the determinative one is that the evidence is not sufficient to sustain a conviction.

Statutes of the kind under consideration generally have been considered valid. The undertaking business is one of a public or quasi-public nature, closely related to the health, safety and general welfare of a community, and is therefore a business which under the policepower may be subjected to regulation and control. In the handling of dead bodies there is a possibility of contagion and certain sanitary practices must be carried out. A State has the power to establish boards of undertaking and embalming such as has been done in Virginia.

It is also well recognized that a State may require undertakers and embalmers to secure licenses before they engage in the practice of their profession, and as a condition to securing a license applicants may be required to possess certain qualifications such as being graduates of certain prescribed schools where the profession is taught. People v. Ring, 197 N.Y. 143, 90 N.E. 451, 18 Ann.Cas. 474, 27 L.R.A..N.S., 528, and Prata Undertaking Company v. State Board of Embalming, 55 R.I. 454, 182 A. 808, 104 A.L.R. 389, Annotations in 23 A.L.R. page 71, and 104 A.L.R. page 402, 54 Amjur., Undertakers and Embalmers, § 3, p. 508, and § 5, p. 511.

The Virginia Act, Virginia Code 1942 (Michie) Secs. 1715 to 1736 inc., after setting up a board to be known as the State Board of Embalmers and Funeral Directors of Virginia, makes provision in sec. 1720 for the qualification and the licensing of embalmers, and in section 1720a for the qualification and licensing of funeral directors. Section 1721 provides that a member of a firm or manager of a corporation engaged in funeral directing shall be licensed, and embalmers and funeral directors of other States may be licensed in Virginia under certain conditions.

Section 1726 defines the term "embalming, " and "funeral director." It is in this language: "For the purpose of this chapter, the term 'embalming' shall be construed to mean the preservation and disinfection, or attempted preservation and disinfection of the dead human body by application of chemicals externally or internally, or both. The term 'funeral directing' or 'funeral director' as used in this chapter shall be construed to mean the business or profession of directing or supervising funerals for profit, * * *."

Section 1723 carries the penalty for violation of the Act, and reads as follows "It shall be unlawful for any person to engage in the profession or business of embalming or funeral directing or as an assistant funeral director as defined in this chapter, unless he is duly licensed as an embalmer or funeral director or assistant funeral director within the meaning of this chapter, and any person who shall engage in either business or profession or both without having first complied with the provisions of this chapter shall be guilty of a misdemeanor and upon conviction thereof in any court having jurisdiction of misdemeanor cases, shall be fined not less than fifty dollars nor more than one hundred dollars for each and every offense."

A reading of the entire Act convinces one that it was the intent and purpose of the legislature to regulate...