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in his father's grave, but he got access to the grave and permission to open it by a false pretense.

"The law to be collected from these authorities seems to me to be this: The practice of anatomy is lawful and useful, though it may involve an unusual means of disposing of dead bodies, and though it certainly shocks the feelings of many persons, but to open a grave and disinter a dead body, without authority, is a misdemeanor, even if it is done for a laudable purpose.

66 These cases, for the reasons I have given, have some analogy to the case of burying a dead body, but they are remote from it. They certainly do not warrant the proposition, that to burn a dead body is in itself a misdemeanor.

"Two other cases come rather nearer to the point. They are Regina v. Vann,1 and Regina v. Stewart.2 Each of these cases lays down in unqualified terms that it is the duty of certain specified persons to bury in particular cases. The case of Regina v. Stewart,3 lays down the following principles: 'Every person dying in this country, and not within certain exclusions laid down by the ecclesiastical law, has a right to Christian burial; and that implies the right to be carried from the place where his body lies to the parish cemetery.' It adds: 'The individual uuder whose roof a person dies is bound (i.e., if no one else is so bound, as appears from the rest of the case), 'to carry the body decently covered to the place of burial. He can not keep him unburied, nor do anything which prevents Christial burial. He can not, therefore, cast him out so as to expose the body to violation, or to offend the feelings, or endanger the health of the living; for the same reason he can not carry him uncovered to the grave.' In the case of Regina v. Vann,1 the court held: 'That a man is bound to give Christian burial to his deceased child, if he has the means of doing so; but he is not liable to be indicted for a nuisance if he has not the means of providing burial for it.'

"These cases are the nearest approach which I have been able to find to an authority directly upon the present point. It may be said that if there is an absolute duty upon a man having the means to bury his child, and if it is a duty to give every corpse Christian burial, the duty must be violated by burning it I do not think, however, that the cases really mean to lay down any such rule. The question of burning was not before the court in either case. In Regina v. Stewart, the question was whether the duty of burial lay upon the parish officers or on some other person. In Regina v. Vann, the question was whether a man who had not the means to bury his child was bound to incur a debt in order to do so. In neither case can the court have intended to express themselves with complete verbal accuracy, for in the case of Regina v. Stewart, the court speaks of the 'rights' of a dead body, which is obviously a popular form of expression a corpse not being capable of rights, and in both cases the expression 'Christian burial' is used, which is obviously inapplicable to persons who are not Christians, Jews, for instance, Mahommedans, or Hindoos. To this I may add that the attention of neither court was called to the subject of anatomy already referred to. Skeletons and anatomical preparations could not be innocently obtained if the language of the cases referred to were construed as if it were intended to be severely and literally accurate.

1 2 Den. C. C. 325.

2 12 Ad. & E. 773, 779.

3 12 Ad. & E. 773, 799.

4 2 Den. C. C. 325.

5 12 Ad. & E. 773, 779.

62 Den, C. C. 325.
712 Ad. & E. 773, 479.

"There is only one other case to be mentioned. It is the case of Williams v. Williams, which was decided just two years ago by Kay, J., in the Chancery Division of the High Court, and is reported in the Law Reports. In this case, one H. Crookenden directed his friend, Eliza Williams to burn his body, and directed his executors to pay her expenses. The executors buried the body. Miss Williams got leave from the Secretary of State to disinter it in order, as she said, to be buried elsewhere. Having obtained possession of it by this misrepresentation, she burnt it and sued the executors for her expenses. The case leaves the question now before me undecided. 'The purpose,' says Kay, J., 'confessedly was to have the body burnt, and thereupon arises a very considerable question whether that is or is not a lawful purpose according to the law of this country. That is a question I am not going to decide.' He held that in that particular case the removal of the body and its burning were both illegal according to the decision of Regina v. Sharpe,2 already referred to. "Giving the lady credit,' he said, "for the best of motives, there can be no kind of doubt that the act of removing the body by that license and then burning it, was as distinct a fraud on that license as anything could possibly be.' This was enough for the purposes of the particular case, and the learned judge accordingly expressed no opinion on the question on which it now becomes my duty to direct you.

"The question arises in the present case in a perfectly clear and simple form, unembarrassed by any such consideration as applied to the other cases to which I have referred. There is no question here of the illegality and dishonesty which marked the conduct of those who were described as resurrection men, nor of the artifices, not indeed criminal, but certainly disingenuous, by which possession of the body was obtained in the cases of Regina v. Sharpe,3 and Williams v. Williams. Price had lawful possession of the child's body, and it was not only his right but his duty to dispose of it by burying, or in any other manner not in itself illegal. Hence, I must consider the question whether to burn a dead body instead of burying it is in itself an illegal act.

"After full consideration, I am of opinion that a person who burns instead of burying a dead body does not commit a criminal act, unless he does it in such a manner as to amount to a public nuisance at common law. My reason for this opinion is that upon the fullest examination of the authorities, I have, as the preceding review of them shows, been unable to discover any authority for the proposition that it is a misdemeanor to burn a dead body, and in the absence of such authority I feel that I have no right to declare it to be one.

"There are some instances, no doubt, in which courts of justice have declared acts to be misdemeanors which had never previously been decided to be so, but I think it will be found that in every such case the act involved great public mischief or moral scandal. It is not my place to offer any opinion on the comparative merits of burning and burying corpses, but before I could hold that it must be a misdemeanor to burn a dead body, I must be satisfied not only that some people, or even that many people, object to the practice, but that it is, on plain, undeniable grounds, highly mischievous or grossly scandalous. Even then I should pause long before I held it to be a misdemeanor, for many acts involving the grossest indecency and grave public mischief- incest, for instance, and where there is no conspiracy, seduction or adultery - are not mis

1 20 Ch. D. 659. 21 D. & B. 160.

3 1 D. & B. 160.

4 20 Ch. D. 659.

coming within that term. That section enacts: "Whoever unlawfully and maliciously sets fire to any building, other than such as are in this act before mentioned, is guilty of felony." The prisoner is indicted for setting fire to "a certain building," and the question is, does the evidence, as reported by the learned judge, show setting fire to a building of any kind. From the report of the case, the learned judge must be taken to have told the jury, for the purposes of the trial, that what was alleged as set fire to, was a building within the meaning of the act. Now the case shows it to be the remains of a wooden dwelling-house, that had been so much injured by a previous fire that the roof was almost entirely gone; that only a few of the rafters were left; that the sides were greatly damaged, and that it was untenantable. It was described by the witness as the relics of the building. I can find no case, and none was cited, giving a judicial meaning of the word building. The absence of authority is accounted for by the statutes describing almost every structure by its distinguishing and well known appellation, coming within the generic term of building. Webster defines it to be "a fabric or edifice constructed for use or convenience, as a house, church, a shop," etc. The Imperial Dictionary gives the same definition. In the case of Elsmore v. The Inhabitants of St. Briavel's,1 the question was whether the building which was set fire to, came within the description of a house, outhouse, or barn. It appeared to have been built for the purpose of being used as a dwellinghouse; but it was in an unfinished state, and had never been inhabited. Bayley, J., in giving judgment, said: "There can not be any doubt that the building in this case was not a house in respect of which burlary or arson could be committed. It was a house intended for residence, but it was not inhabited. It was not, therefore, a dwellinghouse, though it was intended to be one. It was not an outhouse, because it was not parcel of a dwelling-house. But it was contended it was a barn, because it had been used for those purposes for which a barn is used. The building had three stories, chimneys, a staircase, and windows. The plaintiff had deposited in it a quantity of straw and agricultural implements. On consideration, we are of opinion that this building was not a barn, within the meaning of that word as it is used in this statute. It was a house applied to those purposes to which a barn might be applied." After referring to the statute, providing that a capital offense should be committed against that statute by such burning, Bayley, J., says: "The statute, therefore, with reference to a case like the present, must be construed strictly; and, so construing it, we are of the opinion that the building consumed by fire in this case

1 8 B. & C. 461.

was not a house," etc., "within the meaning of this act of Parliament; and in this opinion Lord Tenterden with whom we have conferred upon this case, concurs." In this case it was contended that a house intended for a dwelling house, but which had not been completed and had never been inhabited, was not a house within the meaning of the Legislature.

In Queen v. Colley,1 an indictment for setting fire to a stable, the evidence was, that the building was built for, and had been used as a stable, but for eight or ten years had been allowed to fall into decay; the manger and racks had been removed, the roof partly fallen in, and the building was used as a shed only. CRESSWELL, J., interposed, and said that the building, in its present state, could not be considered a stable; the description in the indictment must be made out by evidence of its present state, whereas now it was merely a shed. This was before the seventh and eighth Victoria, which includes a shed, and an acquittal was directed.

If we apply the reasoning adopted in this latter case, what was set on fire by this prisoner, in its then present state, was the remains, or, to use the expression of the witnesses, the relics, of a house, which remains were being used for, or in the construction of a building intended on completion to be used as a house.

Can those remains, in their then state, be called a building? I think not, any more than the framework of a frame building partly up, say without the roof, can be called a building. It is only a state of proAt what state of progress could it be called a building when the sills are put in their place, or when the plates are placed to receive the roof?

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Applying the principle laid down in the case in 8 Barnewall and Cresswell, that decision shows that if the indictment sets out any the buildings mentioned in the sections preceding the seventh section, the evidence required to support the indictment, must show the building or erection to be one of the kind specifically mentioned, not one in an unfinished state and that could not be used.

Now, the seventh section of our act was intended to cover and include every other kind of building, not otherwise mentioned in the act, and there are many to which it would refer, and the same principles must apply to every other such building included within its provisions.

These statutes must be construed with strictness. If the Legislature intended that any person who should set fire to a building while in progress of construction should be guilty of felony, or that partially destroyed structures, such as the one in question, should be subjects of arson, it should have said so in clear terms.

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constitute the offense described in General Statutes.

To hold that it did would be to leave wholly out of view the meaning of the phrase 'resorted to 'as used in those sections of the statute. In the language of Chief Justice Bigelow in Commonwealth v. Stahl, the prohibition is against keeping or maintaining a house which persons are permitted to frequent for the purpose of unlawful sexual indulgence. "The mischief which the statute seeks to prevent is the existence of such places of resort, with the temptations which they hold out and the vices which they engender and encourage.' We do not mean to be understood as holding that, to prove the offense charged, there must necessarily be direct evidence of numerous acts of prostitution or lewdness permitted by the keeper of the house. But the evidence whether direct or circumstantial, must be sufficient to satisfy the jury that it was kept as a resort for such purposes.

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"Exceptions sustained."

$ 304 cient. - In Saunders v. People, it was laid down that testimony which shows that the lessee of a house and women who had been seen in the house were reputed prostitutes is not, of itself, sufficient to establish the fact that the house is kept or used as a house of prostitution. The court said: "The testimony tended to show nothing more than the evil repute of the lessee, and of other women who had been seen in the house. There was no evidence of any acts of lewdness committed there, and no evidence that men resorted there at all. If there had been proof that the house was resorted to by men as well as women of ill fame, the jury could draw any reasonable inference from such facts. But the law does not punish the mere letting of houses to bad characters. It is the use of the house, and not merely the repute of its inmates, which the particular statute under consideration was intended to reach. Whatever may be the probability that the house will be improperly used when in such hands, yet there must be clear proof of intent, to satisfy the law, and the fact of such use, from which, in this case, the intent was sought to to be derived, is not to be assumed without proof, direct or circumstantial. If the inmates commit offenses elsewhere, the. landlord is not made responsible for what is not done on his premises, and the court erred in allowing the case to be disposed of without testimony tending to establish the misuse of the house. We do not wish to be understood as holding that if there is clear proof of a letting with the distinct understanding that the house is to be used for unlawful purposes, any proof of actual use would be necessary. The crime may be complete at the time of the letting, and such is the meaning of the statute. But in the case before us, there was no proof of of such design that could have sufficed without the evidence of the actual use, and therefore the evidence became essential."

House of Ill-Fame- Reputed Character of Inmates not Suffi

§ 305. House of Ill-Fame - Insufficient Proof. - Evidence of one witness that he had intercourse several times with prisoner's daughter, but never at her house, is insufficient to convict.1

In North Carolina it was held that permitting one's slaves, with others, to meet and dance on Christmas, was not keeping a disorderly house."

1 ch. 165, sec. 13, or in ch. 87, sec. 6.

27 Allen, 305.

3 29 Mich. 269.

4 Smalley v. State, 11 Tex. (App.) 147 (1881). And see State v. Boardman, ante.

State v. Boyce, 10 Ired. 536 (1849). And see Dunnaway v. State, 9 Yerg. 351 (1836).

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