At the Ontario November Term of the Court of Sessions, 1859, the defendant was convicted of the crime of unlawfully receiving the dead body of a human being, for the purpose of dissection, knowing the same to have been unlawfully disinterred. (2 R. S., 871, sec. 13, 14, 5th ed.) Judgment was suspended on the conviction, until the decision of this court upon the questions raised.
The first question relates to the manner in which the verdict was received and entered. After the cause was submitted, the jury retired for consultation, and returned the following verdict: “We find the prisoner guilty of receiving and dissecting,” which was entered by the clerk. Upon a suggestion of the district attorney, and before the jury had separated, that the verdict was informal, the court directed the clerk to change the form of the verdict to that of guilty under the fourth count. This was done. The jury wére then polled and disagreed. They then retired again, under the direction of the court, to decide under which count in the indictment they convicted the defendant. They returned with a verdict of “ guilty under the fourth count.”
It needs no authorities to show that the verdict, which finds a person guilty of an offense, must be that of the jury empanneled for his trial. ' The very phrase “ verdict of the jury ” implies this, and hence the judge who presides at the trial has no right to dictate to the jury what verdict they shall render. But I apprehend that'he may instruct, and that it is his duty to instruct the jury, as to the form of their verdict. What that verdict shall be, is a matter of substance exclusively for *140them. What its form shall be, is a matter of convenience merely, which the court may regulate, where .the statute has not done so. Although there are some expressions in the books, from which it might be inferred that, after a jury had come into court with a verdict, and the clerk had" entered it, it could not be changed in form or substance; yet the true rule is, that until the verdict is rendered and recorded, and the jury have separated so far as no longer to constitute a jury, they have the right to modify the verdict that they may have given, and declare the truth according to their judgment That only is their verdict which, while they are a jury, is their final and definitive agreement. (Blackly v. Shelden, 7 Johns. R., 33.)
There was no error committed by the court in directing the jury, whose verdict was merely informal, to retire and say under which count of the indictment they found the defendant guilty.
The next question is, was the indictment sufficient? As the defendant was convicted under the fourth count, it will be sufficient to inquire as to the sufficiency of that only. It alleges that John G. Weed, Alexander R Simmons and Judson H. Graves, did feloniously and for the purposes of dissection, receive the dead body of one Martha J. Brockelbank, so as aforesaid unlawfully, feloniously and indecently dug up from the grave aforesaid, and unlawfully and indecently taken and carried away from the said grave, the said defendant well knowing the said dead body of the said Martha J. Brockelbank, deceased, to have been so as aforesaid dug up, &e., for the purposes of dissection, &c.
It is said that there are not sufficient averments to constitute the offense, except by reference to the other counts. In other words, that there is no averment of a removal of the dead body from the grave.
It is the constant practice in criminal pleading, in one count of an indictment to refer to matters in a previous count, and it has been decided that this is proper, and that where the first count of an indictment is bad, a subsequent count may *141be sustained, even though it refer to the first count for some allegations, and without repeating them. (Wharton Cr. L., 154, and case died.)
“Although every count,” says Ohitty, “should appear on the face of it to charge the defendant with a distinct offense, yet one count may refer to matter ip any other count so as to avoid unnecessary repetition.” (1 Chitty Cr. L., 250; 2 H. Black., 131.)
If there be doubt as to the fourth count without the reference, there can be none with it. It informs the defendant of-the grounds of the charge against him; it states facts sufficient to enable the court to see that an indictable offense is alleged; it enables the defendant to prepare for his defense and to plead the. judgment against him in bar of a second prosecution. This is all that is requisite to the validity of an indictment. That it does not allege, in so many words, that the body of “ Martha J. Brockelbank” was that of a “ human being,” is true. But I apprehend that we are bound to assume that “ Martha J. Brockelbank ” was not only a human being, but a person of the female sex. The name is sufficiently indicative of both. As to the objection that the indictment does not contain a description of the place of burial, the answer is that it does. It says a “ graveyard in the town of Bristol, Ontario county.” If the objection be that the particular graveyard is not designated, the answer is, that this would be necessary if the statute made it an offense to disinter, &c., or receive the body disinterred from some particular yard; but the offense consists in receiving a body removed from the grave or other place of interment. The sanctity of no particular place of burial is guarded by the statute, but that of all places. The specification of the place of burial was sufficient for all purposes of defense. It was not necessary to allege or prove from whom the body was received. The fact to be proved was that the defendant received it; Here the indictment alleged that three persons, of whom the defendant was one, removed the body from the grave, and the count upon which the defendant was convicted charged them with having received *142it. I see no inconsistency. They could have removed the body from the grave and received it afterward for dissection. This disposes of the questions made upon the indictment.
There was nothing in the charge of the judge calculated to prejudice the defendant. Whether the body found was the body of Martha J. Brockelbank, raised a question of identity, and, upon that question, it was a proper remark of the court that ‘fit would be just as good to identify a foot or á hand as the whole person. In the celebrated case of .Webster, the identity of Parkman, the deceased, was proved by his teeth, quite conclusively.
I do not see that any substantial errors were committed on the trial, and cannot say that the jury were not justified in their verdict by the evidence.
Conviction affirmed, and proceedings remitted to Sessions to pronounce judgment.