
    Orange County,
    February Term, 1828.
    
      The State vs. Seaver Little.
    
    That in declaring upon a statute-offence, in ah indictment, it is not necessary to declare in the words of the statute, but only to show the offence substantially within the statute.
    That it is not necessary to aver that''Benjamin P. Calfe, who was disinterred, was a persont^tliat shall be intended as the indictment is worded.
    This was an indictment against the respondent, upon which he was tried and convicted in the County Court. After which a motion in arrest was filed, and overruled in that court. And that decision was brought up for a revision in this Court.
    The substance of the indictment was, “ That one Seaver Lit- “ tie, of Chelsea, in the said County of Orange, on the night of “ the 25th day of October, in the year of our Lord, one thousand “ eight hundred and twenty-six, with force and arms, at Washing- “ ton, in the said County of Orange, the public burying-ground, “ near the west meeting-house, in said Washington, unlawfully “ did enter, and the dead body of one Benjamin P. Calfe, then “ lately before laid in a coffin, & interred in the same burying ground^ ee did then and there unlawfully dig up, disinter, remove from the said “coffin,disturb and cany away,to the evil exam-’ “'pie of all others,in the like cases offending,con-" ’“trary to the form,force and effect of the1 statute,in such case made “and provided, and against the peace and dignity of the state.”
    
      Mr. ZJpkam, in support of the, motion in arrest. The indictment,we insist, is insnfficientin law to authorize the court to render a jndgment upon the verdict. An indictment must lay the charge against the respondent positively, and not by way of recital; it must expressly allege every thing material in the description of the substance, nature and manner of the crime 5 for no intendment shall be admitted to supply a defect of this kind. — 3 Sac. Ab. 101. — 4 Com. Dig. 662.^-Arch. Crim. L. 5, 15, 16,17. — 3 Salh. 191. — It must also bring the offence within the statute; no-intendment or conclusion will make good an indictment which does not bring the offence within all the words of the statute.— •SBaci Ab. 113. — Hale’s P.C. 170,171. — McJYally’s. Ev. 494. —Arch. Crim. P. 22.
    Again, it is not always sufficient to pursue the words of the statute, unless, in sci doing, yon fully, directly, and expressly allege die matter wherein the offence consists, without the least uncertainty or ambiguity. — 3 Bac. Ab. Il3, — 3 B. and Pul. 106.— 5 East’s R. 244. — So an indictment is insufficient wherever all the facts charged may be true, and yet the party be innocent. — ■ 2 Hawk. P. C. 320,321, — 2 Doug, R. 153. — An indictment upon the statute of stabbing, without saying “ having a weapon first drawn,” is not good. — 3 Salk. 191. — —I Ld.Ray. 138. — In Commonwealth vs. McMonagale, 1 Mass. R. 516, the court held that an indictment for breaking a store could not be supported under the act of 15th March, 1785, Sec. 8, which enacted “that if “ any person shall break open any dwelling house, in the day time, “ with an intent to steal, or commit any felony, or break open any “ ware house, shop, mill, malt-house, barn, stable, out-house, or “ any public building, or other building whatsoever, or any ship, “ or other vessel, being within the body of the county, by night ' “orby day,with an intent to steal,or commit felony,” because the indictment did not allege that the store was a building.
    From what has been said, wc learn that an indictment, in the frsi place, must be certain as to the pajdy indicted. In the sec-
      ondplace, it must be certain as to the person against whom the offence was committed. In the third place, it must be certain as to the time and place. In the fourth place, it must be certain as to the facts, circumstances, and intent, constituting the offence. With these general principles in view, let us proceed to examine this indictment.
    1. As to the place where the crime was committed. The indictment does not allege that the defendant, on such a day, enter-ered a public burying ground, in such a parish, where the bodies of dead persons are buried. Neither does it allege that the dead Body of the said Benjamin P. Calfe, was there buried in a grave in said burying ground. These are important and material allegations. — 2 Sw’s. Dig. 749. — 2 Chit. Crim. L. 14. — Arch. Crim. P. 379.
    
      2. The.indictment does not allege that the defendant dug up, disinterred, or removed the body of a dead person, or a human body.
    3. It does not allege that there ever was in existence or life,, any such person as Benjamin P. Calfe, or that any such person ever died.
    4. All the facts charged in the indictment may be true, and yet the party be innocent. The offence consists in digging up and removing a human body. Now the indictmentno where charges, the respondent with digging up and removing a human body. The allegation is, that he dug up, disinterred, and removed the dead hody of one Benjamin P. Calfe.
    
    
      Nutting, State’s Attorney, contra. To the first cause assigned, the prosecutor answers, that the locus in quo constitutes no part of the offence; therefore,need not be set forth in the indictment. — Stat. p. 275. To the 2d, 3d, 4th and 5th,- he answers, that it is unnecessary to aver that Benamin B. Calfe was a person, or had a human body, or once lived, or sickened and died.— lH«st,314.--2JEfflst260.--l Chit.Crimdaw, 139,140, 142& 143. Also,l Chit. 196, “where a word or sentence is capable’of different meanings,that will be taken by the court which will support the pro-ccedings,and npt that which will defeat thorn.” “At the present dajf certainty to a common intent is all that is r©»-quisite.” — ibid. To the 6th cause, prosecutor answers, that it is never necessary to negative an exception-'Or proviso which is contained in a separate clause of the statute' - — 1 Chit. 233.-2 Chit. 14.
   Hutchinson, J.

delivered the opinion of the court. The slat-ute of this state, (see page 275,) enacts, concerning the offence with which the defendant is charged, “ that, if any person, or persons, shall dig u.p, remove, or disturb, the remains of any dead person, interred within this state,” he shall be punished so andso„

This indictment is not drawn with great caution. It does not attempt to charge the defendant in the words of the statute. Nor was that necessary, if other words equivalent were inserted. It is objected to the indictment, that it neither adopts the words of the statute, nor those that are equivalent. The indictment, instead of saying “the remains of any dead person,” says “the dead body of Benjamin P. C-alfe, then lately before laid in a coffin, and interred in the same burying'ground.” What are the remains of a dead person? thedead body is the answer .This is well understood in common parlance. Nothing .else does remain,after the spirit has fled, but the dead body. In speaking of a person who is living, if we say that his body was hurt, wounded, &e. it is well under-' stood in its appropriate sense. It means the body of a person, not of his horse, or his ox.

The objections that it does not appear that Benjamin P. Calje was a person — that he ever lived and died, &c. are rather too nice and technical to be sanctioned. All the statutes against crimes use the expression, “ if any person shall do such an act.” “ If any person shall break the peace.” “• If any person shall counterfeit the coins,&c.” No indictment, upon these statutes, was ever seen alleging that the defendant was a person. The charge is, that A. B. did such an act. This is sufficient.

So of some other circumstances noticed as objections. They seem answered by reading the indictment,as every person would understand it. “That the defendant, at ITashingion in said county,with force and arms, the public buiying groundneaiy&c. in said Washington,unlawfully did enter; and the deadbod}' of oneBenja* min P. Calfejhvn lately before laid in ajcoffin, and inlerredjn the same'burying ground, did then and there nnlaw-folly dig up, disinter, remove from the said coffin,disturb and carry away.” All tlieáe expressions combinéd leave but little of that uncertaintysupposed by the objections.

But, it is urged that títere is no averment that the dead'body remained interred, at the time it was dug up by the defendant— That it only appears argumentatively. This would have been plausible, if there were no allegation of interment. That the defendant dug up the hody, would strongly imply that it was in a state capable of'being dug up ; that is, that it was interred. Yet this would be inference only. But when the indictment not only alleges that the defendant dug up, disturbed, disinterred and removed the dead body of Benjamin P. Calje, but also alleges that the same dead body had then lately been laid in a coffin,and inter-ced in the samo burying ground, it seems too much to call upon the court to presume, that, notwithstanding all these allegations,' the body might have been disinterred in the mean time, and not then capable of being dug up by the defendant.

It is hardly supposable that the defendant could ever have suffered at the trial, or been jeopardized, by the admission of any testimony, but what applied to the indictment, according to its most natural signification, and as was intended by the grand jury who presented the same. If proof had been offered of the disinterring of any other than a human body, or any other than the body of a man or boy of the name of Benjamin P. Calfe, it would have been excluded, as not supporting the indictment.

That technical notion of construing language, used in criminal prosecutions, which would exclude every common and reasonable intendment, seems, in modern times, to have been- exploded. In 2 Gal. Rep. 15, The United States vs. Batchelder, there was a motion in arrest after verdict, grounded on supposed defects in the indictment. Among others, not following the statute formed one objection. The word “violently” was substituted for “forcibly.” Indeed, there seemed to be no attempt to follow the statute in its language, only in its substance. The indictment was held sufficient. Judge Story there says, “It is not, in general, necessary, in an indictment for a statutable offence, to iollow the .exact wording of the statute. It is sufficient, if the offence be set forth with subtantial accuracy and certainly lo a reasonable intendment.” — He lays this down with the single exception of technical words which constitute the specific offence, like burglar iter in burglary. With regard to tne omission of the word forcibly, used by the statute, he says that means doing an act with force ; and the indictment charges that the resistance was with force and arms.

¿Nutting, for State.

Upham, for defendant.

The motion in arrest, in the case before the Court, is overruled,  