People v. Dalton

The Court: The indictment accuses the defendant of the crime of “Violating Sepulture, committed as follows: The said Eugene Dalton, on the 8th day of July, A. D. 1879, at the said City and County of San Francisco, without authority of law, disinterred and removed from his place of sepulture, at Laurel Hill Cemetery, in said City and County of San Francisco, the dead body of the late Elias Lipsis, a human being, the said ■dead body not being the dead body of a relative or friend of the said Eugene Dalton removed for re-interment, contrary to the form, force and effect of the statute,” etc. Defendant ■demurred.

Chapter six of title nine of part one of the Penal Code is headed—“Violating Sepulture and the Remains of the Dead.”

Section 290 of the Penal Code—being the first section of ■.the chapter—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 per[227]son who removes the dead body of a relative or friend for re-interment.”

The act of April 1, 1878 (Stats. 1877-78, 1050), provides for a different offense. It is entitled, “ An act to protect the public health from infection caused by exhumation and removal of the remains of deceased persons.” It makes it a misdemeanor to disinter or exhume the body or remains of any deceased person, unless a “ permit shall first be obtained from the Board of Health, Health Officer, Mayor, or other head of the municipal government.” It applies as well to the relatives or friends of the deceased as to all other persons.

If it should appear at the trial that defendant was a “ relative or friend” of the deceased, Elias Lipsis, authorized by law to remove his remains, he can not be found guilty of the offense last described, since the indictment fails to negative the. fact that a permit may have been obtained. But the act of April 1st, 1878, does not repeal § 290 of the Penal Code. The act and the section of the code are to be read together. It was not the purpose of the former to authorize any person to disinter or remove a dead body, provided he should be able to satisfy the Mayor or Board of Health that it could be done without danger to the health of the living.

The question then is whether the indictment is sufficient to charge the felony described in § 290 of the Penal Code. Before the amendments of 1880, that code provided: