
    People of the State of New York, Resp’t, v. Eucebia Fitzgerald, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed January, 1887)
    
    
      1. Coroner — Jurisdiction — Exhuming buried bodies — Code Grim. Pro., §773.
    The coroner has no jurisdiction to act except in the manner provided by law. He can proceed only by the aid of a jury. Code Crim. Pro., § 773 He has no right on his own motion, or at the request of any one, tó take up a dead body and have portions removed for analysis. In failing to comply with the law, he loses all jurisdiction, and his acts are not those of an officer, but of an individual.
    2. Same—When third party responsible for act of— Penal Code, §§ 29, 311.
    A certain coroner, at the request of defendant, without calling a jury, had, a dead body taken up and portions thereof removed for analysis, There-was evidence tending to show malice on rhe part of defendant. Held, that under Penal Code, sections 29 and 811, this was ail that was necessary to make defendant responsible therefor, as if done by herself
    Appeal from a judgment convicting defendant of violating sepulture and the remains of the dead.
    
      John B. Stanchfielcl (district attorney), for People; Jacob Schivartz, for app’lt.
   Boardman, J.

The coroner has no jurisdiction to act except in the maimer provided by law. Code, Grim. Pro. § 773. He had no right on his own motion or at the request of the defendant to take up a dead body and have portions removed for analysis. No one can suppose that a coroner is possessed of such an irresponsible authority to be exercised upon suspicion upon the buried bodies in our cemeteries. He can proceed only by the aid of a jury. The statute was not complied with in this case. No jury was summoned. The act done was without authority of law. In failing to comply with the law he lost all jurisdiction and the act was not the act of an officer, but of an individual. He was a trespasser, a wrong doer, and his official character could not be invoked to protect others.

He acted at the instigation of the defendant alone. No one else had any mbtive to act or desired action. And who was the defendant, and what was her motive? Was it in the interest of a just administration of the criminal law? She knew in California directly after the death of General Irvine in 1882 from Dr. Wooster, exactly what she makes, use of in 1885 in New York to accomplish her purpose here, as appears by the evidence of her son Horace N. Wooley. She claimed to be a relative by adoption to General Irvine from his youth. By reason thereof and for other reasons, she claims an interest in his affairs and the ownership of his property. Both claims are successfully controverted. She sends a hired detective or servant to shadow the family and get some evidence in her interest. In the midst of the California litigation over the title and ownership of Irvine’s property there, she leaves San Francisco and follows her detective to Elmira, where she attempts to get a favorable adjustment of -her claims against the property of the deceased. Threats are made use of. Suggestions of criminal agency on the part of the family of the deceased producing his death are made. All these means failing more active measures are instituted, and she proposes and urges the disinterment of the body and the examination of some of the organs for poison.

To carry out this purpose she has procured for use two written instruments, affidavits or bogus affidavits, exceedingly informal, uncertified by any officer to make them evidence in this state and produces them to the coroner to induce action. This is the only evidence, known to her in 1882 as well as it was in 1885, on which is founded the suggestion that Irvine was murdered by his wife and daughter. It is used to incite action by the coroner and he undertakes to act. The defendant’s motive is further illustrated by her search for a will in the coffin. She requests the coroner and Nealson to search for a will of deceased in the coffin and they do so, cutting open the pillow for that search. She came to Elmira to have the body taken up and the stomach examined, and she proposed to stay until that was done. She was the guiding, animating spirit for her own malicious and selfish motives in securing this disinterment. Mr. Reilly, the coroner, ceased to be coroner, and as her agent and at her request searches the coffin for a will. Was there anything in the relations of the defendant and General Irvine, as shown by the evidence, wffiich could justify her action? Was there any evidence that the deceased came to his death by criminal agency? The jury has answered both questions in the negative. It has also found that the defendant was actuated by malicious motives; that she was attempting to extort money or property from the family of the deceased, and that failing in pursuasions or threats, she resorted to more violent proceedings to bring the family to terms or to blacken their reputation with suspicions of criminal agency in the death of the husband and father. The jury has found that what was done was so done at her request, by her instigation, for her purposes and with malice. Of course it is not intended to say that the jury made such express findings. What we do say is, that the evidence would justify such findings, which, being found, would sustain this conviction. Penal Code, § 29. This section, with section 311 of the Penal Code, are all that are necessary in a proper case to connect the defendant with the act done by others and make her responsible therefor as if done by herself.

Let us review the exceptions taken upon the trial and see whether error was there committed. The district attorney was allowed to prove that General Irvine came to his death from natural causes. This evidence tended to show that the conduct of the defendant in charging a violent death was false, without any reasonable foundation, and instigated by malice. The motives of defendant were properly in issue.

The ruling at folio 127 was proper. The defendant, on cross-examination, had no right to the conversation further than was limited by the court, viz.: “Such portions of the conversation as relate to matters called out by Mr. Stachfield.”

The rulings at folios 142, etc., are explained at pages 126, etc., and as so explained the exceptions are not valicl. It is possible, however, that whatever was said or done on that occasion was a part of the res gestee, showing, among other things, that no coroner’s jury was called and that Reilly had not contemplated calling one. Besides, if Reilly was acting for and at the request of the defendant, his declarations in connection with his acts and tending to characterize them were proper. We see no valid exception to the evidence allowed to be read from the first commission.

The declarations of the defendant to Mrs. Merkle in 1882 in Elmira as to her relations with Gen. Irvine were properly admitted in evidence, and were the proper subject for contradiction. For the same purpose witnesses were properly called to show that Irvine never lived in Kentucky, and could not have been adopted by defendant’s father as and when she claimed, thus overthrowing the pretended youthful intimacy between defendant and deceased upon which the defendant based their later friendship.

We do not see any error in the cross-examination of Charles A. Collin. The latitude allowed on cross-examinatian is reasonably broad. The defendant had proved the advice which Collin had given to her, and this cross-examination related to what was said in connection with the advice given, and tended greatly to qualify, if not destroy it, so far as it was to be used as a justification for her action.

Numerous other objections and exceptions are cited upon appellant’s points without any comment or authority showing the rulings of the court to have been erroneous. The reading of the case and of such objections as there occurred during the progress of the trial does not show any errors. In fact the case appears to have been tried in a pains-taking and careful way, and we are convinced that the rights of the defendant were carefully guarded by the learned judge.

Inasmuch as this conviction can be sustained upon other grounds, it has not been deemed necessary to consider the question of the jurisdiction of a coroner of Chemung county after interment of a dead body in such county where the death occurred in the state of California. This opinion assumes that the coroner, so long as he follows the statute, has such jurisdiction, but without so deciding.

We think the judgment should be affirmed.

Follett, J., concurs; Hardin, J., dissents.  