Gray, J.
This cause is in this court on an appeal on questions of law from a judgment of the Court of Common Pleas of Brown County, Defendant was convicted by a three judge court of what is commonly known as “grave robbing,” an offense denounced by R. C. 2923.07 and also of the offense denounced by R. C. 155.03 in that defendant without lawful authority did remove certain monuments, gravestones and grave markers from a cemetery.
Defendant, feeling aggrieved by this result of her trial, filed her notice of appeal and assigned the following errors :
“First Assignment of Error — The court erred in permitting the State to amend the indictment and the bill of particulars to allow the state to obtain a conviction on proof
that the offenses charged in the indictment had occurred two years before the dates set forth in the indictment and in the bill of particulars.
“Second Assignment of
Error
— A delay of over two years in the initiation of prosecution operated to deny appellant a fair trial and to deprive her of rights guaranteed by due process of law.
“Third Assignment of Error — The court erred in excluding testimony which tended to demonstrate that appellant had not acted willfully in committing the acts charged in the indictment — testimony which was relevant to the question of guilt or innocence.
“Fourth Assignment of Error — The court erred in admitting hearsay testimony, over the objection of counsel for appellant, to the prejudice of appellant.
“Fifth Assignment of Error — The court erred in denying appellant’s motion for judgment of acquittal at the conclusion of the state’s case where the state had failed to offer any probative evidence tending to establish that appellant had acted willfully and unlawfully as charged in the indictment.
“Sixth Assignment of Error — By repeatedly reciting facts outside of the record, facts designed to demonstrate the prosecutor’s personal knowledge of relevant information, the prosecutor acted in a manner to deny appellant a fair trial.
“Seventh Assignment of Error — The court erred in predicating conviction solely upon a finding that appellant had transferred bodies from one grave to another without fully complying with all applicable statutes where the court admitted and the evidence demonstrated that appellant had not acted willfully in violation of the law.”
Defendant is a real estate developer who had purchased a tract of approximately 60 acres of land in Huntington Township, Brown County. In developing the land, she ordered bulldozers to level land upon which a cemetery was located. The cemetery contained 21.6 poles of land and four graves. This land was excepted from the operation of her deed. There were three headstones and an
“ordinary big rock” that served as a headstone for one grave. It was determined that Alexander and Isabel Raines were buried there along with their cousin, Eleanor, who had an engraved headstone also.
It could not be determined which grave the “ordinary big rock” marked. Defendant secured a health permit to remove the bodies. She employed a licensed undertaker to move the bodies to another cemetery and also paid for moving the stones.
She attempted to secure approval of the Huntington Township Trustees, but the township records do not disclose any action of approval of the project. Several heated sessions and confrontations occurred which no doubt were the moving forces that caused the matters to be taken before the grand jury.
The first court of the indictment was based upon the language of R. C. 2923.07. The offense stated iu that section is commonly known as “grave robbing.”
A “grave robber” is defined in Webster’s Third New International Dictionary as “one that breaks open a grave to obtain interred valuables or to remove the body (as for illicit dissection): a body snatcher: Ghoul.”
The caption of R. C. 2923.07 (effective October 1,1953) is
“Grave
Robbing.”
Consideration of the title is especially proper where, as in Ohio, the title is prefixed by a solemn vote of the legislature passing the law, and there is a constitutional provision that no bill shall contain more than one subject, which shall be clearly expressed in the title.
The title of an act may be utilized for determining the purpose which induced the enactment of the law, which purpose may be considered in arriving at a correct interpretation of its terms.
In the interpretation of statutes, the titles thereof have been declared to be persuasive and entitled to great weight when one is determining their meaning.
Applying the law to the facts of this case, we are of the opinion that there is
no
evidence tending to prove the defendant is guilty of the offense of “grave robbing.”
Ethel Raines Davis testified for the prosecution. Her testimony revealed that she was then 79 years old and that Alexander and Isabel Raines were her grandparents. These grandparents would have had to have been buried many years ago. Considering the state of the art of embalming at that time, the type of caskets and burial equipment then in use, and an elapse of time of approximately 125 years, the bodies would be entirely decomposed.
25A Corpus Juris Secundum 488, Section 1, states in part as follows:
“The term ‘dead body’ is synonymous with the word ‘corpse,’ and as used in a legal sense means the body of a human being deprived of life. When the word ‘body’ is used to denote human remains it suggests a corporeal or tangible entity, and thus the terms ‘body’ and ‘dead body’ do not include the remains of a human body which has long since decomposed. (Citing
Carter
v.
Zanesville,
59 Ohio St. 170.) ”
In 1880, when the statute in question (R. S. 7034, 77 Ohio Laws 85) was first enacted in present form, the caption of the section read: “Penalty for grave robbing.” When this statute became part of the General Code (Section 13391) the caption read “Grave Robbing.”
Thus, we see that for over 90 years and after two major revisions of our code, the legislature acquiesced in the title and synopsis of the contents of this section. The meaning of the words “corpse” and “body” was interpreted by the Supreme Court in the case of
Carter
v.
Zanesville
(1898), 59 Ohio St. 170. It construed a related section of the code (R. S. 3764) which read in part as follows:
“Any person, association or company, having unlawful possession of the body of any deceased person shall be jointly and severally liable with any and all other persons, associations and companies, that had or have had unlawful possession of such corpse # *
The court at page 178 of the opinion said:
“This statute is directed against such persons, et cetera, as have unlawful possession of a ‘body’ of a deceased person.
Free access — add to your briefcase to read the full text and ask questions with AI
Gray, J.
This cause is in this court on an appeal on questions of law from a judgment of the Court of Common Pleas of Brown County, Defendant was convicted by a three judge court of what is commonly known as “grave robbing,” an offense denounced by R. C. 2923.07 and also of the offense denounced by R. C. 155.03 in that defendant without lawful authority did remove certain monuments, gravestones and grave markers from a cemetery.
Defendant, feeling aggrieved by this result of her trial, filed her notice of appeal and assigned the following errors :
“First Assignment of Error — The court erred in permitting the State to amend the indictment and the bill of particulars to allow the state to obtain a conviction on proof
that the offenses charged in the indictment had occurred two years before the dates set forth in the indictment and in the bill of particulars.
“Second Assignment of
Error
— A delay of over two years in the initiation of prosecution operated to deny appellant a fair trial and to deprive her of rights guaranteed by due process of law.
“Third Assignment of Error — The court erred in excluding testimony which tended to demonstrate that appellant had not acted willfully in committing the acts charged in the indictment — testimony which was relevant to the question of guilt or innocence.
“Fourth Assignment of Error — The court erred in admitting hearsay testimony, over the objection of counsel for appellant, to the prejudice of appellant.
“Fifth Assignment of Error — The court erred in denying appellant’s motion for judgment of acquittal at the conclusion of the state’s case where the state had failed to offer any probative evidence tending to establish that appellant had acted willfully and unlawfully as charged in the indictment.
“Sixth Assignment of Error — By repeatedly reciting facts outside of the record, facts designed to demonstrate the prosecutor’s personal knowledge of relevant information, the prosecutor acted in a manner to deny appellant a fair trial.
“Seventh Assignment of Error — The court erred in predicating conviction solely upon a finding that appellant had transferred bodies from one grave to another without fully complying with all applicable statutes where the court admitted and the evidence demonstrated that appellant had not acted willfully in violation of the law.”
Defendant is a real estate developer who had purchased a tract of approximately 60 acres of land in Huntington Township, Brown County. In developing the land, she ordered bulldozers to level land upon which a cemetery was located. The cemetery contained 21.6 poles of land and four graves. This land was excepted from the operation of her deed. There were three headstones and an
“ordinary big rock” that served as a headstone for one grave. It was determined that Alexander and Isabel Raines were buried there along with their cousin, Eleanor, who had an engraved headstone also.
It could not be determined which grave the “ordinary big rock” marked. Defendant secured a health permit to remove the bodies. She employed a licensed undertaker to move the bodies to another cemetery and also paid for moving the stones.
She attempted to secure approval of the Huntington Township Trustees, but the township records do not disclose any action of approval of the project. Several heated sessions and confrontations occurred which no doubt were the moving forces that caused the matters to be taken before the grand jury.
The first court of the indictment was based upon the language of R. C. 2923.07. The offense stated iu that section is commonly known as “grave robbing.”
A “grave robber” is defined in Webster’s Third New International Dictionary as “one that breaks open a grave to obtain interred valuables or to remove the body (as for illicit dissection): a body snatcher: Ghoul.”
The caption of R. C. 2923.07 (effective October 1,1953) is
“Grave
Robbing.”
Consideration of the title is especially proper where, as in Ohio, the title is prefixed by a solemn vote of the legislature passing the law, and there is a constitutional provision that no bill shall contain more than one subject, which shall be clearly expressed in the title.
The title of an act may be utilized for determining the purpose which induced the enactment of the law, which purpose may be considered in arriving at a correct interpretation of its terms.
In the interpretation of statutes, the titles thereof have been declared to be persuasive and entitled to great weight when one is determining their meaning.
Applying the law to the facts of this case, we are of the opinion that there is
no
evidence tending to prove the defendant is guilty of the offense of “grave robbing.”
Ethel Raines Davis testified for the prosecution. Her testimony revealed that she was then 79 years old and that Alexander and Isabel Raines were her grandparents. These grandparents would have had to have been buried many years ago. Considering the state of the art of embalming at that time, the type of caskets and burial equipment then in use, and an elapse of time of approximately 125 years, the bodies would be entirely decomposed.
25A Corpus Juris Secundum 488, Section 1, states in part as follows:
“The term ‘dead body’ is synonymous with the word ‘corpse,’ and as used in a legal sense means the body of a human being deprived of life. When the word ‘body’ is used to denote human remains it suggests a corporeal or tangible entity, and thus the terms ‘body’ and ‘dead body’ do not include the remains of a human body which has long since decomposed. (Citing
Carter
v.
Zanesville,
59 Ohio St. 170.) ”
In 1880, when the statute in question (R. S. 7034, 77 Ohio Laws 85) was first enacted in present form, the caption of the section read: “Penalty for grave robbing.” When this statute became part of the General Code (Section 13391) the caption read “Grave Robbing.”
Thus, we see that for over 90 years and after two major revisions of our code, the legislature acquiesced in the title and synopsis of the contents of this section. The meaning of the words “corpse” and “body” was interpreted by the Supreme Court in the case of
Carter
v.
Zanesville
(1898), 59 Ohio St. 170. It construed a related section of the code (R. S. 3764) which read in part as follows:
“Any person, association or company, having unlawful possession of the body of any deceased person shall be jointly and severally liable with any and all other persons, associations and companies, that had or have had unlawful possession of such corpse # *
The court at page 178 of the opinion said:
“This statute is directed against such persons, et cetera, as have unlawful possession of a ‘body’ of a deceased person. The section further refers to the ‘body’ as such
‘corpse.’
The terms ‘body’ and
‘corpse’
found in this statute do not include the remains of persons long buried and decomposed.”
Where a word or phrase has previously received a judicial construction in a related section of the code and there have been major revisions of the code by the General Assembly since that time, it will be presumed that the General Assembly had the intention to adopt the construction placed upon the word or phrase by the courts.
Cf. Goehring
v.
Dillard,
145 Ohio St. 41.
As an aid in the construction of a statute, it is to be assumed or presumed that the legislature was acquainted with, and had in mind, the judicial construction of former statutes on the subject.
Accordingly, where words used in a statute have acquired a settled meaning through judicial interpretation and the same terms are used in a subsequent statute upon the same or an analogous subject, they are generally interpreted in the latter as in the former, where the object to which the words are applied, or the connection in which it stands, does not require it to be differently understood in the two statutes, or where a contrary intention of the legislature is not made clear by other qualifying or explanatory terms.
Since it may be presumed that the legislature knew the construction, long acquiesced in, which had been given by the courts to a statute reenacted by the legislature, it may equally be presumed that the legislature intended to adopt the construction as well as the language of the prior enactment. It is, accordingly, a settled rule of statutory construction that when a statute or a clause or provision thereof has been construed by a court of last resort, and the same is substantially reenacted, the legislature may be regarded as adopting such construction. This rule has been generally held to be persuasive and in some eases is even regarded as binding upon the courts.
The purpose of the General Assembly is a dominant factor in determining the meaning of any statutory legislation. There is no better key to a difficult problem of statu
tory construction than the law from which the challenged statute emerged. Remedial laws are to be interpreted in the light of previous experience and prior enactment.
United States
v.
Congress of Industrial Organizations,
335 U. S. 106, 112, 113, 68 S. Ct. 1349, 1352, 1353.
Reenactment of a statute creates a presumption of legislative adoption of previous judicial construction. A. statute susceptible of either of two opposing interpretations must be read in the manner which effectuates, rather than frustrates, the major purpose of the legislative draftsman.
Shapiro
v.
United States,
335 U. S. 1, 2, 68 S. Ct. 1375, 1376.
It is also a well established rule of statutory construction that all the provisions of a code bearing upon a single subject matter should be construed harmoniously.
The record shows that this plot of ground was grown up with brambles, briars, weeds and was abandoned for all intents and purposes.
The undertaker testified that he had to use probes to determine where the graves had originally been located. The relative softness of the ground revealed where the ground had once been disturbed.
We are of the view that these former places of excavation ceased to be graves when no “body” or “corpse” remained and that R. C. 2923.07 does not relate to the remains of persons
long buried or decomposed. Carter
v.
Zanesville, supra.
We are also of the view that this section of the law applies only to “grave robbers,” ghouls and the like, ones who have a nefarious purpose in disturbing the excavations.
It is interesting to note that neither the undertaker, the gravedigger who allegedly disinterred the bodies, nor the bulldozer operator who levelled the ground were charged with any offense. From the record, we learn that this defendant was ordered to Lima State Hospital for 60 days for a sanity examination upon the bald statement in a journal entry that:
“It appearing to the Court that the defendant here
in was found guilty of the offense of opening a grave under such Section 2923.07 of the Revised Code of Ohio;
“And, it further appearing to the Court that the said defendant may be mentally ill, a mentally deficient offender, or a psychopathic offender * # *. ”
The record does not show that there was any medical evidence adduced that would warrant such action on the part of the trial court. After her examination at Lima for 60 days, she was found to be sane.
She did everything required by the law, but failed in the end to get the necessary permit.
These mortal remains must have been buried for at least 125 years and under the definition given in
Garter
v.
Zanesville, supra,
they were no longer “bodies” or “corpse[s].” A grave has been defined as an excavation in the earth in which a dead body is or is buried.
Since there was no corpse in this excavation, there was no grave in the sense intended by the various General Assemblies in motivating them to enact R. C. 2923.07 and previous related sections.
The offense denounced by this section is classed as a felony and hence serious consequences flow from a conviction thereunder. There is no evidence that anything of value was found in this plot of land.
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. Disinterment of anything remotely identifiable as a human corpse, though carried out with no good intent, could not amount to “grave robbing.”
In a famous English ecelesiatical case,
Gilbert
v.
Buzzard
(1820), S. C. 3 Phill. 335, 161 Eng. Rep. — Full Reprint 761, in an opinion written by Sir William Scott (later Lord Stowell), the court held that the right of burial extends in time no farther than the period needed for complete dissolution.
The prosecution failed to convict defendant by the requisite degree of proof and she is therefore discharged on the first count.
R. 0.155.03 in pertinent part states as follows:
“No person shall, without lawful authority, remove * * * a gravestone or gravemarker, as erected to perpetuate the memory or [sic] * * * other person * * V’
Under the facts of this case as developed in the record, defendant did not have any lawful authority to remove the gravestone, therefore, she is guilty of the offense charged in the second count of the indictment.
Judgment accordingly.
Abele, P. J., concurs.