
    The People, etc., Resp’ts, v. Eucebia Fitzgerald, App’lt.
    
    
      Court of Appeals,
    
    
      Filed March 22, 1887.)
    
    1. Criminal, law—Body stealing—Penal Code, § 311.
    Section 311 of the Penal Code, forbidding the removal of the dead body of a human being, or any part thereof, from a grave, vault, etc., without authority of law, with intent to steal the same, or for the purpose of procuring a reward for the return of the same, or from malice or wantonness,, was not intended to apply to exhumations made by legally constituted public authorities, for the purpose of ascertaining whether crime has been committed in producing the death of the person whose body is exhumed.
    2. Same—Post mortem—Impaneling jury.
    It is debatable whether a post mortem should take place before the coroner has impaneled a jury. But it should not be in the presence of the jury, and they are to be instructed by the testimony of the physicians who are designated by the coroner to make it.
    3. Same.
    Defendant, by affidavits, made a strong case, which led the coroner to examine the body. It was claimed that her desire was not so much for the punishment of crime as to obtain pecuniary advantage for herself by making defamatory charges. Held, that if she committed a wrong, it was not the crime of body stealing.
    Appeal from judgment of the supreme court, general term, fourth department.
    
      Jacob Schwartz, for app’lt; John B. Stanchfield, for resp’ts.
    
      
       Reversing 6 N. Y. State Rep., 599.
    
   Rapallo, J.

The facts of this extraordinary case are fully stated in the dissenting opinion of Hardin, J., at general term. We should content ourselves with concurring in that opinion were it not that it simply orders a new trial for errors in the charge and for refusals to charge while we think that it should have gone further, and have held that the facts of the case did not establish a crime punishable under the statute against body stealing, (Pen. Code, § 311,) under which the prisoner was indicted and convicted, and which is in the following words: “Sec. 311. A person whore-moves the dead body of a human being, or any part thereof, from a grave, vault, or other place where the same ' has been buried, or from a place where the same has been deposited while awaiting burial, without authority of law, with intent to steal the same, or for the purpose of dissection, or for the purpose of procuring a reward for the return of the same, or from malice or wantonness, is punishable by imprisonment for not more than five years, or by a fine not exceeding $1,000, or both.” This statute describes every kind of ‘‘ body stealing ” known to the law. The addition inserted in the Penal Code, “ or for the purpose of obtaining a reward for the same,” was the only substantial change made since the Revised Statutes in the definition of this heinous crime.

The intent of the statute is manifest. It certainly was .not intended to apply to exhumations made by legally constituted public authorities, for the purpose of ascertaining whether crime has been committed in producing the death of the person whese body is exhumed. When the exhumation is made, not secretly, but publicly, on open application to the officer of justice charged with the duty of inquiring into the cause of death of any person whose body is brought within his jurisdiction, it is a total misapplication of the statute against body stealing to use it for the purpose of imposing its punishment on all persons concerned in the exhumation, in case any proceedings of the officer under whose direction under whose direction it was made should be found to be irregular.

The irregularity alleged in this case in the conduct of the coroner is that he did not impanel a jury before he ordered the post mortem examination to be made by the physicians whom he summoned for the purpose. A sufficient number of persons to form a jury was assembled by direction of the coroner, but the jury was not sworn and impaneled. I refer to the opinion of Judge Hardix as correctly stating the facts, which we have verified by an examination of the testimony. The point of law is debatable whether a post mortem should take place before the coroner has impaneled a jury. But it is settled that the post mortem should not be in the presence of the jury, and that they are to be instructed by the testimony of the physicians who are designated by the coroner to make it. The dissection by order of the coroner is expressly authorized. Pen. Code, § 308; Crisfield v. Perine, 15 Hun, 202; affirmed, 81 N. Y., 622. If, as in England at one time, the findings of the coroner’s jury were to stand as an indictment by a grand jury, some point might be made on behalf of the accused as to the validity of the inquest in such a case as this. But to resort to those questions for the purpose of supporting an indictment for body stealing under the circumstances of this case, is quite unreasonable. In the present case the defendant communicated to the coroner in the form of affidavits, whether legally authenticated or not is immaterial, information which should have induced any magistrate not neglectful of his duty to believe that he ought to investigate the matter presented to him. Those affidavits made a strong case to lead the coroner to believe that a murder had been committed, and that an examination of the body, which was within his jurisdiction, would disclose the fact. The defendant sought an examination of the body. She asked the coroner to do his duty, and to examine the body. Whatever motives may have influenced her, no one can suppose that, however unfounded her belief might have been, there was not sufficient in the papers she presented to the coroner to justify his action, and there is no pretense that the affidavit of Dr. Worter, which she produóed, had been in any manner influenced by her. Her silence during several years after the death of G-eneral Irvine is the main argument against the bona fides of her charge, and it is said that her desire was not so much for the punishment of crime as to obtain some pecuniary advantage for herself by making defamatory charges.

However this may be, if she committed a wrong, it was not the crime of body stealing, and on this ground the conviction, and the judgment of the general term affirming it, should be reversed, and the prisoner discharged.

All concur.  