People v. Baumgartner

CHIPMAN, C.

Defendant was convicted of felony upon an information charging defendant and two others with the crime of violating sepulture, in that they “did willfully . . . disinter from its place of burial . . . the dead body of the late Wong Quois Sing, a human being, the said dead body not being the dead body of a relative of [naming defendants], or either of them, removed for reinterment, contrary,” etc. The information was under section- 290 of the-

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Penal Code, which reads: “ Every person who mutilates, disinters, or removes from the place of sepulture the dead body of a human being without authority of law, is guilty of a felony. But the provisions of this section do not apply to any person who removes the dead body of a relative or friend for reinterment.”

•A brief statement of facts is correctly given by the respondent as follows: “ In so far as the proof of the crime is concerned, it is only necessary, for the purposes of this appeal, to state that during the month of February, 1901, a Chinaman was buried in the cemetery at Los Banos. It was believed by the defendants that a large sum of money was buried on his person. In order to secure the money, they opened the grave and the coffin, without removing said coffin from the grave. They had searched the body only to the extent of discovering a ten-cent piece and a counterfeit dollar, when they were frightened away.”

The court instructed the jury as follows:

“

To disinter the dead body of a human being, as the term 1 disinter ’ is used in our Penal Code, means to uncover, to expose the dead body of a human being that had been interred to light and air; in other words, the body or some part thereof must be actually exposed to view. If the body should be uncovered to such an extent that in all probability it would be damaged or mutilated by animals or the elements more than it would have been so damaged without such uncovering, then the body would be disinterred in contemplation of law. To constitute a disinterment it is not necessary that the body should be removed from the place of sepulture. ’ ’

Appellant contends that,this instruction was error. It is not pretended that the body was removed from its resting-place, nor that there was any intention to remove it. The desecration had for its only object to secure the money supposed to be buried with the body. At common law it was an offense to treat the dead human body indecently, and it was indictable to wantonly or illegally disturb a dead human body after burial, to expose such body without proper burial, to sell it, for mere purposes of private gain, for dissection, or to disinter it, unless so directed by the deceased in his lifetime or by his relatives after his death, with consent of the public authorities and owners of the ground where this is requisite.