
    Commonwealth versus William F. Loring.
    An indictment under the second section of St, 1814, c, 175. for receiving and concealing a dead body, was sustained, where the evidence, though it had a tendency to prove an offence under the first section, of tigging up the body, did not conclusively prove such offence.
    Penal statutes, though they are to be construed strictly, are yet to receive such «* construction as will conform to the manifest intention of the legislature and avoid an absurdity.
    Thus in an indictment upon St, 1814, c. 175, forbidding any person to dig up a human body,(t not being authorized by the selectmen of any town in this Commonwealth,” it was held sufficient to aver, that the defendant was not authorized by the selectmen of the town where the body had been buried ; this being according to the intention of the legislature.
    This was an. indictment upon the second section of St. 1814, c. 175.
    The first section provides, “ that if any person, not being authorized by the board of health, or the selectmen of any town in this Commonwealth, shall knowingly and wilfully dig up, remove or carry away, or aid or assist in digging up, removing or carrying away any human body, or the remains thereof,” such person shall be imprisoned, &c.
    The second section provides, “ that if any person or persons knowingly and wilfully receive, conceal or dispose of any human body, or the remains thereof, which shall have been dug up,- removed or carried axvay in the manner described in the first section of this act, he or they shall be subject to the same forfeitures and penalties,” &c.
    The third section is, “ that all fines, accruing under this act, shall enure, one half to the informer, and one half to the town in which the offence is committed.”
    At the trial, which was before Parker C. J., it was proved by the government, that the defendant, on the night of November 17, 1828, went with a horse and wagon towards the com mon b'.irying-ground in Springfield, having a box in-the wagon, which was procured by him ; that one Perkins and one Moore went in the wagon with him and acted under bis direction ; that the dead body of the person mentioned in the indictment, which had been previously taken out of the grave in which it had been buried, the grave having been dug up for that pur pose, was taken from the ground where it had been laid neai the burying-place and covered over with leaves, by Moore, Perkins remaining in the wagon taking care of the horse, and was put into the box and the box covered and locked ; and that the wagon was then driven over the bridge, where it had been agreed by the defendant he would meet Perkins for the purpose of conveying the body to Pittsfield. There was no proof that the defendant was at the graveyard at the time when the body was taken and put into the box, or that he assisted in that act; but it was fully proved that Moore and Perkins acted under his authority and by his direction.
    It was objected by the defendant, that the evidence proved that the body was dug up and removed by him, as much as that, he concealed or disposed of it; so that the offence was under the first section of the statute : And further, that the facts proved did not show such an offence as is described in the second section. Both of these objections were overruled. The defendant, being convicted, moved for a new trial.
    
      J. H. Jlshmun, for the defendant.
    The statute creates two distinct offences ; one is, digging up, removing or carrying away a dead body, or assisting in digging up &c. ; the other, in receiving, concealing or disposing of a dead body. The receiving of the body must be by a person who did not dig it up. The evidence shows an offence under the first section, and if the defendant is guilty under that section, he cannot be under the second. If he is convicted and sentenced, or acquitted, under this indictment, he may still be indicted under the first section and convicted upon this same evidence. Perkins and Moore were the agents of the defendant; he was the principal ; if he received by them, he gave by them ; and mere could not be an offence under the second section. [ Wilde J. The indictment does not allege that Moore and Perkins dug up the body, but that it was by persons unknown.] But the jury would infer that it was dug up by Moore and Perkins.
    
      
      Sept. 18th.
    
    The defendant also moved in arrest of judgment, because the indictment did not allege that the disinterment was not authorized “ by the board of health, or the selectmen of any town in this Commonwealth.” The allegation was only, that it was not authorized by the board of health or selectmen of the town of Springfield.
    
      The defendant however relies with more confidence upon the motion in arrest of judgment. The indictment does not pursue the statute. There is nothing in the statute that implies that the consent of the selectmen of the town where the bed) was buried, should be obtained ; the words are, “ any town in this Commonwealth.” Whatever may have been the intent of the legislature, there is nothing in the statute itself restraining it to narrower limits than these. It may be suggested, that the statute will not effect its purpose ; but it is not for the Court to say what the legislature intended, except so far as they can determine it from the words of the act. The terms of this statute are so express and unambiguous, that there is no room for construction. 2 Rutherf. Inst. 307; Vattel, bk. 2, c. 17. But if there were any thing ambiguous, still, being a penal statute, it must be taken according to the strict letter, in favor of the subject. 1 Bl. Com. 88, and Christian’s notes, 19, 20; 2 Hawlc. c. 25, § 103; 1 Swift’s Syst. 50; 1 Hawk. c. 70, § 26. In Daggett v. Connecticut, 4 Connect. R. 60, where the statute prohibited the erection of wooden buildings in New Havén, having in them a chimney, and the party erected such a building with the chimney entirely outside of it but looking into it and fitted solely for its accommodation, it was held that the statute did not apply to the case. In United States v. Sheldon, 2 Wheaton, 119, driving oxen to Canada during the war, was held not to be within the statute against “transporting” articles of provision “in any wagon, cart, sleigh, boat or otherwise.” By 14 Geo. 2, c. 6, stealing sheep or other cattle was made felony ; but it was held that the words, or other cattle meant nothing. 1 Bl. Com. 88. So of the words or any other way, in the Connecticut statute against killing bastard children “ by drowning or any other way.” Swift’s Syst. 50. In Commonwealth v. Carrol, 8 Mass. EL 490, breaking and entering in the night-time a warehouse, with intent to steal, &c. was held not to be within the provision, that if any person “ shall in the night-time enter, without breaking, or in the day-time break and enter,” &c and yet no one can doubt that the legislature intended to provide against breaking and entering in the night-time. See also United States v. Gooding, 12 Wheaton, 476, 477; Paulina's Cargo v. United States, 7 Cranch, 60; United States v Willberger, 5 Wheaton, 95; Com. Dig. Parliament, R 20 The defendant is not to be told that the consequences of his construction of the statute may be injurious to the community. The legislature, upon seeing the deficiency in the statute, may provide for future cases.
    
      Davis (Solicitor-General), for the Commonwealth, cited
    1 Bl. Com. 88, 89, 91, Christian’s note, 21; Bac. Abr. Statute, I, 9; United States v. Gooding, 12 Wheat. 476; Paulina's Cargo v. United States, 7 Cranch, 60; Com. Dig. Parliament, R 10. b.
    
    
      Bates, in replying,
    insisted that a conviction under the second section v ould not be a bar to an indictment under the first.
    A conviction on an indictment for manslaughter is a bar to an indictment for murder, because there only one act is done. Here digging up the body is one act, and receiving it is another ; like the stealing of goods, and the receiving of them when stolen.
    The statute is not incapable of being enforced, upon the defendant’s construction. The indictment may negative that any town gave a license to dig up the Body, and this may be proved ; and though it would be attended with inconvenience, yet that is no reason for giving a construction contrary to what is enacted in express terms. It is asked what authority has one town to license disturbing a grave in another. We answer, none but what the legislature have given it. If the statute means a disinterment not authorized by the selectmen of the town where the body was buried, the indictment might have pursued the words of the statute, “ not being authorized by the selectmen of any town,” and then proof that there was no license from the particular town would sustain the averment; but it clearly would not.
    
      Sept. 19th.
   Parker C. J.

delivered the opinion of the Court. The question in this case arises from an unfortunate obscurity in the terms of the statute on which the indictment is founded. Taken strictly, without reference to the subject matter and the manifest intention and object of the legislature, it would appear, that in order to sustain an indictment on the statute, it must be averred and proved that the board of health or selectmen of no town in" the Commonwealth had given license to do the act complained of. The consequence would be, as oral testimony alone can be admitted on criminal trials, of facts proveable by witnesses, that the officers of every town, to the number of three or four hundred, must be summoned and give their personal attendance in the court where such prosecution is pending. We hazard nothing in saying that the legislature never intended such an absurdity.

But it is said that penal statutes admit of no latitude of construction ; that they are to be taken strictly, word for word, let the consequences be what they may. It is true it is so laid down as a general rule, and the reason is, that the Court shall not be allowed to make that an offence which is not so made by the legislative enactment. But the rule does not exclude the application of common sense to the terms made use of in the act, in order to avoid an absurdity which the legislature ought not to be presumed to have intended. There are cases which show this, although precedents would not be required to sustain so reasonable a doctrine. Bac. Abr. Statute I, 9; Heydon's case, 3 Coke, 7; Rex v. Gage, 8 Mod. 65; Plowd. 86; and The Soldier's case, Cío. Car. 71, — all of which are cited by Bacon, — go to show that even penal statutes, though to be construed strictly, as the general rule, yet are to receive such a construction as will conform to the intention of the legislature ; some of them are stronger cases than this.

This statute has been in operation twelve or thirteen yeais, during which time there have been many prosecutions under it. which have been defended with great zeal by eminent counsel and yet the defect now suggested has never before been piesented. This shows that the common understanding of the profession has been, that the words of the statute in regard to a license from the selectmen of any town, had reference to the town within which the offence was committed. And there is reason for this in the statute itself, for it is obvious that the legislature considered the offence, though of a public nature, to be particularly injurious to the community or town where repositories for the dead had been violated. How strange it would be, that a man indicted for breaking up a graveyard ii Springfield on Connecticut river, and rifling it of dead bodies, should produce a license from the selectmen of Province-town, at the extremity of Cape Cod, as a justification for the act; and yet this would be a good defence, upon the construction of the statute demanded in support of this motion. By the last section of the statute it is provided, that one half the penalty or fine shall enure to the town within which the offence is committed.” This shows that the legislature contemplated towns as more specially interested in the prosecution, and may serve to show their intention in the phrase any town in the Commonwealth, when providing for a license or authority to do the act.

It was objected to the verdict in this case, that the evidence reported proves that the defendant was guilty of digging up &c the body, so that his case is within the first section of the stat ute ; whereas he is charged only on the second section, with receiving, concealing and disposing of it ; which is founded upon the act of digging up &c. being done by another. The testimony had a tendency to prove that the breaking up the grave and removing the body were by Moore and Perkins, who appear to have been employed by the defendant; but it was not decisively proved that they did the act. The evidence went no further than to show, that the body having been dug up and removed from the grave, outside the burying-ground, where it was covered by leaves, it was taken from this place of concealment by the defendant’s order, and under his control was carried off. The case then is very clearly within the second section of the statute. Motions overruled. 
      
       See Revised Stat. c. 130, § 19; Commonwealth v. Cooley, 10 Pick. 37.
     