
    The People of the State of New York, Respondent, v. Eucebia Fitzgerald, Appellant.
    (Argued March 3, 1887;
    decided March 22, 1887.)
    The provision of the Penal Code (§ 311), describing the offense of body-stealing, and providing for the punishment thereof, does not apply to-public examinations made by legally constituted authorities for the purpose of ascertaining whether crime has been committed in producing the death of the person whose body was exhumed, although some of the proceedings of the officer, under whose directions the examination was made, were irregular.
    Where, therefore, upon application of defendant and upon affidavits, sufficient to give jurisdiction, a coroner directed the exhumation of a body for the purpose of a post mortem, examination to determine whether the deceased was murdered, and the body was accordingly exhumed and an examination had without impanneling a jury. Held, that, conceding the proceeding was irregular, an indictment under said pro-' vision could not be sustained, and this, without regard to the motives-which actuated defendant; that if she had committed any offense it. was not that of body stealing.
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, entered upon an order made January 11, 1887, which affirmed a judgment of the Court of Oyer and Terminer of the county of Chemung, entered upon a verdict convicting the defendant of the crime of body stealing.
    The facts, as stated in the dissenting opinion of Hardin, J., in the court below, are as follows : General Irvine died in the city of San Francisco on the night of Hovember 12, 1882, suddenly, having during the day been out gunning, returning to his home in the evening, after partaking of a light repast, consisting of tea, eggs, cold meat, and bread and butter, prepared by his wife Phoebe,who with their daughter, Mrs. Merkle, were occupying apartments together. Soon after partaking of the refreshments he became distressed and made complaints of internal pains. The daughter left for a physician, and, upon returning, they found that death had taken place. The remains were taken that night to the rooms of an undei taker and they were subsequently embalmed, and on the fourth of December were conveyed by the widow and daughter to the city of Elmira, where they were interred in Woodlawn Cemetery.
    About a year after the death inquiry was instituted as to the cause thereof, and the defendant employed a detective named Heal son, who visited the city of Elmira, and returned to San Francisco and made a report to the defendant, who then applied to the undertaker who embalmed the body, and to Dr. Wooster, the deceased’s intimate friend and physician, who had viewed the body, and they gave affidavits of certain facts within their knowledge.
    In the affidavit of Dr. Wooster, subscribed March 11,1885, in connection with the statement of facts he adds, “ In my opinion he was first poisoned in his food or drink and then when in agony from the effects of the dose he was struck on the head to stop his contortions and groans.”
    Porter, the undertaker, stated in the affidavit subscribed by him, the condition of the remains when he received them, and that sundry persons * iewed the remains, “ among others, Dr. Wooster, who remarked that to him it looked as having been poisoned.”
    With these papers in her possession, the defendant visited the city of Elmira, where she met the detective, Heal son. She sought legal counsel as to the method to be pursued in order to investigate whether General Irvine died a natural or unnatural death. She consulted an attorney, who advised her that the coroner of the county of Chemung had jurisdiction to hold an inquest over the remains and that the “ papers upon their face authorized him (the coroner) or were sufficient, upon which he might exercise his discretion in the matter.”
    The defendant .and Nealson visited the office of Dr. Reilly, the coroner of the county of Chemung, and held a conversation in regard to the circumstances attending the death of the deceased. The affidavits of Porter and Dr. Wooster were presented to the coroner and the defendant asked Dr. Reilly “to do his duty as a coroner; to examine and see if the proofs were sufficient to authorize him in proceeding, ” and “ that she wished the body to be taken up and the stomach or some part of it to be analyzed to see if there was any trace of poison there. She made the request that the evidence should be produced if it was there.”
    After that interview Coroner Reilly determined to proceed in the premises. He visited Hathan Baker, superintendent of Woodlawn cemetery, at his house and said to him, “ That he had evidence to satisfy him that a wrong had been perpetrated, or sufficient to warrant him in making an examination of the ■ body of General Irvine. * * * That he had sufficient grounds of acting and he asked Baker, the superintendent, to act,” showing him one of the affidavits and stating that he had others. .. Thereupon the superintendent determined to act in the premises and facilitate the proceedings in behalf of the coroner..;. Thereupon directions were given Abbott, the sexton, to open the grave and remove the remains to the vault.in,the_cemetery for the purpose of an examination. ^
    Reilly, the coroner,'also applied to Dr. Wey to become one of two physicians to make the examination, and on the evening of the eighth of April Reilly visited the office of Wey, with Healson, avowing that he had fall authority in the premises “ to conduct an examination and have an examination made by the physicians.” The hour was fixed for an examination at ten the next morning and Reilly informed Wey that he would “notify Dr. Squires * * * and we might expect to meet at the receiving vault in Woodlawn cemetery ” at ten the next morning. Accordingly they met the next morning at the receiving vault in Woodlawn cemetery, where the physicians found Coroner Reilly and Nealson and Baker and Abbott. The body was found “ lying in a coffin or casket on the floor of the receiving vault. The coroner made a minute of the nature of the covering of the coffin and its handles and the plate and the descriptions of every other matter connected therewith. Drs.Wey and Squires raised the head and shoulders of the body and after carefully scrutinizing the face and the coroner making a minute thereof, a careful examination was made of the head, and the stomach and duodenum, and certain other parts of the body were removed and delivered to Dr. Reilly, who placed them in a vessel he had prepared for that purpose.
    After the examination the coroner went over to the house of Abbott, the sexton, in the cemetery grounds, where Baker suggested the propriety of having a coroner’s jury and Wey replied: “ It is too late for such a proceeding.”
    Baker testified that he was present at the request of the coroner to identify the remains, and that he did so identify them, and that he was sworn upon that point by the coroner; that while at the vault he had a conversation with Dr. Reilly, the coroner, and he adds: “ Dr. Reilly and myself conversed for a few minutes about having a jury and I said to Dr. Reilly there was enough within the bounds of the cemetery to make up a jury, and he asked if I would have them all come to the house, and I so ordered, and they came. I think there were five men that came off the cemetery. I think there were nine men there then. When I had sent for the men I went back to the house and did not go in the vault again. About that time Dr. Wey came over to the house.”
    He also testifies that he held a conversation with Dr. Wey and stated as follows: “ Dr. Reilly has seemed to think it advisable to have a jury. There are men enough here to have a jury without delaying, and there are men enough; they are already here ; and Dr. Wey said it was of no use ; that if there was anything found to show that this man died from any causes other than natural causes the whole procedure would have to go to California, and this jury would never be heard of again. I stepped out of doors and Reilly was coming over from the vault, and he had not yet come in the house; and I said Dr. Wey thinks it is entirely useless to have a jury, and I‘ don’t wish to urge this matter one way or the other, doctor; and Dr. Wey came out and he repeated to Dr. Reilly what he had said to me in the house, that it was no use to have a jury, and he gave his reasons as I have stated.”
    Ho jury was, in fact, sworn to hold an inquest. The remains were recoffined and returned to the grave, except the parts removed therefrom as already stated.
    
      Jacob Schwartz for appellant.
    Any coroner of Chemung county had jurisdiction to hold an inquest over the body of General Irvine. (Smith on Coroners, 620; Code of Crim. Pro. § 773.) The defendant cannot be convicted of being concerned in the crime of stealing the body of General Irvine, or óf having counseled, commanded, induced or procured another to commit the crime of stealing it, the body not having been exhumed without authority of law. (Penal Code, §§ 29, 311; 3 R. S. [5th ed.] 968, 969; Smith on Coroners, 620; Crisfield v. Perine, 15 Hun, 200; 81 N. Y. 622.)
    
      John B. Stanchfield for respondent.
    The death of Irvine having taken place in the State of California, and the interment of the body in the county of Chemung in the State of Hew York, a coroner of that county had no jurisdiction to act in the premises. (Reg. v. G. W. R. Co., 42 E. C. L. R. [3 Q. B.] 333; 1 Russ, on Cr., 754; Code of Crim. Pro. §§ 73, 774.) In this State a coroner’s court is a court of inferior jurisdiction, not of record. When sued for an act done by him in his official capacity, in order to justify, he must show that he had authority to do the act complained of. Ho thing will be implied in his favor. (Crisfield v. Perine, 15 Hun, 201.) At common law it was essential to the validity of a coroner’s inquisition, that the jury should view the body. (Rex v. Ferrand, 3 B. & Ald. 260.)
   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, for refusals to charge, Avhile we think that it should have gone farther and have held that the facts of the case did not establish a crime punishable under the statute against body stealing (Penal Code, § 311), under which the prisoner was indicted and convicted, and Avhich is in the following words: “ Sec. 311. A person who removes 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, Avitli intent to steal the same, or for the purpose of dissection, or for the purpose of procuring a reAvard 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 one thousand dollars, 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,” Avas the only substantial change made since the Bevised 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 Avhether crime has been committed in producing the- death of the person whose 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 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 lie 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 drawn and impaneled. I refer to the opinion of J ndge Hardin 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. (Penal 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. Wooster, which she produced, had been in any manner influenced by her. Her silence during several years after the death of Gen. Irvine, is the main argument against the lona fides of her charge, and it is said that her desire was not so much 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.

Judgment reversed.  