The indictment upon which the defendant was prosecuted provided in its material part that:
"* * * one B. F. Glass, did unlawfully and wilfully open a grave where a corpse had been deposited, contrary to Section2923.07 of the Revised Code of Ohio."
R. C. 2923.07 is captioned "grave robbing" and reads as follows:
"No person shall willfully and unlawfully open a grave ortomb where a corpse has been deposited, or remove a corpse from its sepulchre, or knowingly deliver a corpse so removed to another for medical or surgical study, or receive, conceal, or secrete a corpse, knowing it to have been so removed or delivered.
"Whoever violates this section shall be imprisoned not less than one nor more than five years." (Emphasis added.)
The above section had its inception in 44 Ohio Laws 77, 1846, wherein an act was published which stated the purpose in the title — "To secure the inviolability of places of human sepulchre." Section 1 of the act provided:
"That if any person shall open the grave of any deceased person, or the tomb where the body of any deceased person has been deposited, or shall remove the body or remains of any deceased person from its grave or other place of sepulchre, for the purpose of dissection or any surgical or anatomical experiments, or for any other purpose, *Page 222 without the consent of the near relatives of the deceased, if there are any, otherwise without the consent of the trustees of the township in which such body has been deposited, or, if within any incorporated city, town or borough, without the consent of the municipal authorities thereof, or shall, in any way, aid, assist or procure the same to be done, or shall receive, conceal or secrete any such body, or shall aid or assist in any surgical or anatomical experiments or demonstrations therewith, or dissection thereof, knowing said body to have been so taken or removed from the place of its sepulchre, every such person, upon conviction thereof, shall be fined in any sum not exceeding one thousand dollars, or imprisoned not more than six months, or both, at the discretion of the court."
The section was embodied in the Revised Statutes of 1880 as Section 7034. In 77 Ohio Laws 85, the section was amended to read:
"Whoever, without lawful authority, willfully opens the grave or tomb where any corpse has been deposited, or removes any corpse from its place of sepulchre, or knowingly delivers any corpse so unlawfully removed to another for medical or surgical study, and whoever receives, conceals, or secretes any corpse so removed or delivered, knowing it to have been so removed or delivered, shall, upon conviction thereof, be imprisoned in the penitentiary not more than five years nor less than one year; and whoever assists in any surgical or anatomical experiment or demonstration upon any corpse unlawfully obtained, knowing it to have been so unlawfully obtained, shall be fined not more than one thousand dollars nor less than one hundred dollars, or imprisoned not more than one year nor less than six months or both."
In 1883, in Schneider v. State, 40 Ohio St. 336, the Ohio Supreme Court stated, with respect to R. S. 7034, concerning an alleged offense which occurred in 1879.
"The statute, section 7034 Rev. Stats., under which the indictment is framed, defines several distinct offenses. It is directed against any person who without lawful authority opens a grave, or removes the corpse from its place of sepulchre, or delivers it to another for surgical study, *Page 223 or who receives, conceals or secretes the same so removed, or assists in any surgical demonstration, knowing it to have been so removed or delivered."
R. S. 7034 was enacted into the General Code as Section 13391. It was captioned "grave robbing" and provided:
"Whoever, wilfully and unlawfully opens a grave or tomb where a corpse has been deposited, or removes a corpse from its sepulchre, or knowingly delivers a corpse so unlawfully removed to a person for medical or surgical study, or receives, conceals or secretes a corpse, knowing it to have been so removed or delivered, shall be imprisoned in the penitentiary not less than one year nor more than five years."
Where I differ initially from my colleagues in this case is that I am not persuaded the offense charged in this case is that of "grave robbing." Admittedly, R. C. 2923.07, under which the indictment is drawn bears that title. However, by the provisions of R. C. 1.01, the title, chapter and section headings do not constitute any part of the law as contained in the Revised Code. The decision of the Supreme Court in Schneider v. State, supra, in construing R. S. 7034, is clear authority that several offenses are embraced in R. C. 2923.07, one of which is the wilful and unlawful opening of a grave in which a corpse has been deposited. It is that latter offense, and solely that, laid in the indictment herein.
I find I must differ, also, from the majority opinion in the conclusions that the conduct proscribed; i. e., the wilful and unlawful opening of a grave is lawful or unlawful depending upon the state of preservation of the corpse.
The legal distinction pointed out in the majority opinion between what is meant by "body" and that which remains after the body decomposes has long been recognized. By the same token, the legal distinction between the body of the deceased and the grave itself has also been recognized. In 21 A. L. R. 2d 476 at 477, the following is stated:
"In considering the law of dead bodies, two concepts *Page 224 are to be borne in mind: (1) In legal contemplation a grave and the body interred within it are separate entities. (2) A cadaver is not an everlasting thing; after undergoing an undefined degree of decomposition it ceases to be a dead body in the eyes of the law.
"A grave is nothing more than a place where a body (or the ashes of a cremated body) is buried. It continues to be a grave as long as it is recognized or is recognizable as such. This may extend over centuries, long after the interred body and its trappings have merged with the soil and have become altogether undiscernible."
In carefully considering R. C. 2923.07 and the predecessor enactments, it would appear anomalous that the legislature intended a criminal sanction in unlawfully opening a grave where a body is preserved and intended no sanction if decomposition has occurred and only skeleton remanents remain. Particularly is this so in light of the original enactment that it is an offense "if any person shall open the grave of any deceased person, or the tomb where the body of any deceased person has been deposited."
The reason is well stated in 21 A. L. R. 2d 476, as follows:
"The normal treatment of a corpse, once it is decently buried, is to let it lie. This idea is so deeply woven into our legal and cultural fabric that it is commonplace to hear it spoken of as a "right" of the dead and a charge on the quick. Neither the ecclesiastical, common, nor civil system of jurisprudence permits exhumation for less than what are considered weighty, and sometimes compelling, reasons. Securing "unbroken final repose" has been the object of both civil and criminal legislation."
The gist of the violation here charged is violation of thegrave and not the body. Thus, the decision of the Ohio Supreme Court in Carter v. Zanesville, 59 Ohio St. 170, where the gist of the civil action under R. S. 3764 was the possession of a "body," is not inconsistent with the view here adopted.
Assuming, without conceding its correctness, the view *Page 225 of the majority that a "body" must be in the opened grave for a violation to occur, the record is such that the trier of fact could fairly and reasonably conclude that bodies were moved. The funeral director testified that he was hired to remove the "remains" from the graves and then stated that he removed four "bodies." The exact date these persons were buried is not discernible from the record. The paucity of the record as to the state of the bodies results from the fact that no attempt was made to defend in the trial court or here upon the basis that the bodies were decomposed. I am not persuaded that this court may, with propriety, assume the bodies to have been completely decomposed because of embalming practices, type of caskets and burial equipment with respect to such deceased persons, when the record is silent in such matters.
Under the facts of this case, there could be no question that defendant acted wilfully. It is also an element of the offense that the opening of the grave be unlawful. R. C. 517.21 regulates the removal of bodies from abandoned cemeteries by township trustees and R. C. 517.23 regulates the removal by township trustees upon application of the next of kin. The record reflects that defendant knew of such statutes and knew further that the township trustees refused to act upon her request to move the bodies. She had secured a permit from the health department as contemplated by R. C. 517.23. She could not herself apply under R. C. 517.23 to remove the bodies as she was not a next of kin. Even had such next of kin made application, removal would still be unlawful without action by the trustees.
I have considered the errors assigned and do not believe them well taken. The case was fairly tried, in my view, and the record supports the finding of guilt, and, therefore, I would affirm the judgment below. *Page 226