Commonwealth v. Cooley

27 Mass. 37

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1830
• Status: Published

Opinion

Per Curiam.

The indictment having alleged that the burying ground belonged to the first congregational parish in G eenfield, it is objected that no evidence was offered on the part of the government in support of the allegation. The Coi rt are of opinion, that the allegation was unnecessary, and that it did not become material by having been introduced into the indictment. It forms no part of the description of the offence charged. It does not qualify or aggravate the offence. There is therefore no reason for granting a new trial.¹

But the defendant moves in arrest of judgment, that the crime for which he is indicted is not an offence at common law ; and if it is, that the common law on this subject has been superseded ,by our statute of 1814, c. 175. We think it clear that it is an offence at common law, and there is an express decision to that effect in 2 T. R. 733. The reason why cases of this sort are not to be found in the earlier reports is very obvious, namely, that the dissection of human bodies was not so extensively practised in former times. And this will account for the fact, that few, if any prosecutions at common law for this offence, have taken place in this Commonwealth.

The question then is, whether the common law has been superseded here by the statute of 1814. And the Court are of opinion that it has been. The whole subject has been revised by the legislature. The time for prosecuting the offence, and the punishment are limited by the statute, and provision likewise is made for the removal of dead bodies. A statute is impliedly repealed by a subsequent one revising the whole subject matter of the first; Bartlett v. King, 12 Mass. R. 545 ; Nichols v. Squire, 5 Pick. 168 ; and in the case of .a statute revising the common law, the implication is at least equally strong.¹ At common law it was criminal to dig up and remove a dead body ; but that would not now be an offence in this Commonwealth, since the statute makes provision for the removal of a dead body under a license. If the common law were in force, it should seem that the license would not be a defence to an indictment at common law. The common law and the statute would be at variance with each other.

Judgment arrested.²

1 See United States v. Howard, 3 Sumner, 14, 15; 1 Chitty’s Crim. Law, (4th Am. ed.) 205 et seq. State v. Noble, 15 Maine R. (3 Shepley,) 476.

1 See Jennings v. Commonwealth, 17 Pick. 80, 82, 83.

2 See Revised Stat. c. 131, § 19. As to the conclusion of the indictment, see Revised Stat. c. 137, § 14; 1 Chitty’s Crim. Law, (4th Am. ed.) 290 and notes ; State v. Negro Evans, 7 Gill & Johns. 290