G-A.NTT, J.
This is a prosecution originating in-Putnam county, Missouri. The indictment, omitting formal parts, contained three counts as follows:
First count. “That one Ira Baker, on the-day of April, A. D., 1895, at the said county of Putnam, State of Missouri, did then and there unlawfully, willfully and feloniously dig up, disinter and remove the dead body and the remains of a human being, to wit, the dead body and remains of one Mary J. Williamson, deceased, from the grave in which the said body and remains had then before been interred and then and there was, for the purpose of selling the dead body and remains, against the peace and dignity of the State.”
Second count. “That one Ira Baker, on the..... day of April, 1895, at the county of Putnam, State-[327] of Missouri, did then and there willfully and feloniously dig up, disinter and remove the dead body and remains of one Mary J. Williamson deceased, from the grave in which the said body and remains had then before been interred and then and there was, for the purpose of dissecting the said body and remains, against, etc.”
Third count. “That one Ira Baker, on the-day of April, 1895, at the county of Putnam, State of Missouri, ^ did then there willfully, unlawfully and feloniously dig up, disinter and remove the dead body and remains of one Mary J. Williamson, deceased, from the grave in which the said body and remains had then before been interred and then and there was, for the purpose of surgical and anatomical experiment and preparation of the said body and remains, against, etc.”
At the September term of said court, 1897, the defendant was put on trial and the jury brought in a general verdict, finding the defendant guilty and assessing his punishment at a term of two years in the penitentiary. Defendant assigns three grounds of error for reversal.
I. The first and the substantial assignment is that the sentence should be reversed because there was a total failure of proof to show a violation of the criminal law under either of the counts in the indictment. The burden of the evidence was that defendant lived at Lemon Station, in Putnam county, and was operating a brickyard some distancerom his house; that one Dr. Chapman also lived in the same village; that he and defendant were quite good friends; that Chapman was much addicted to intoxication and defendant often took him to his home and that on one occasion the doctor had injured defendant by striking him in the side. Kennedy, the witness upon whom the State relies to sustain this conviction, was a half-brother of [328] Dr. Chapman. Defendant had a claim against the estate of Chapman and this aroused the resentment of Kennedy and he preferred this charge. His story is this, that one night a few days prior to the day he named for the commission of the offense he visited Chapman and they slept in the same room that night. Prom that room the cemetery and defendant’s brickyard were visible. About midnight an electrical storm occurred and by the flashes of lightning a form of some one was revealed to Dr. Chapman, who called Kennedy’s attention to it. Chapman died before the trial of this case. The morning after the storm Kennedy says he met defendant and saw clay on his shoulder and remarked to him he must have been out riding the night before. This was in April, 1895. He says defendant then took him aside, and said he was out and got a “stiff” and had buried it in his brickyard. During the same day Kennedy asked defendant when he was going to put up a monument up there, pointing to the brickyard, and defendant answered, “Never you mind; when I want a little ready money, I can get $20 to $10 for him in Keokuk or St. Louis.” There was evidence that the grave of a Mrs. Williamson had been robbed of its body and evidence that a sack or waist with the peculiar buttons which she wore' was found in the brickyard of defendant and Kennedy says Ms impression was that defendant said it was an old lady he buried in his brickyard.
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G-A.NTT, J.
This is a prosecution originating in-Putnam county, Missouri. The indictment, omitting formal parts, contained three counts as follows:
First count. “That one Ira Baker, on the-day of April, A. D., 1895, at the said county of Putnam, State of Missouri, did then and there unlawfully, willfully and feloniously dig up, disinter and remove the dead body and the remains of a human being, to wit, the dead body and remains of one Mary J. Williamson, deceased, from the grave in which the said body and remains had then before been interred and then and there was, for the purpose of selling the dead body and remains, against the peace and dignity of the State.”
Second count. “That one Ira Baker, on the..... day of April, 1895, at the county of Putnam, State-[327] of Missouri, did then and there willfully and feloniously dig up, disinter and remove the dead body and remains of one Mary J. Williamson deceased, from the grave in which the said body and remains had then before been interred and then and there was, for the purpose of dissecting the said body and remains, against, etc.”
Third count. “That one Ira Baker, on the-day of April, 1895, at the county of Putnam, State of Missouri, ^ did then there willfully, unlawfully and feloniously dig up, disinter and remove the dead body and remains of one Mary J. Williamson, deceased, from the grave in which the said body and remains had then before been interred and then and there was, for the purpose of surgical and anatomical experiment and preparation of the said body and remains, against, etc.”
At the September term of said court, 1897, the defendant was put on trial and the jury brought in a general verdict, finding the defendant guilty and assessing his punishment at a term of two years in the penitentiary. Defendant assigns three grounds of error for reversal.
I. The first and the substantial assignment is that the sentence should be reversed because there was a total failure of proof to show a violation of the criminal law under either of the counts in the indictment. The burden of the evidence was that defendant lived at Lemon Station, in Putnam county, and was operating a brickyard some distancerom his house; that one Dr. Chapman also lived in the same village; that he and defendant were quite good friends; that Chapman was much addicted to intoxication and defendant often took him to his home and that on one occasion the doctor had injured defendant by striking him in the side. Kennedy, the witness upon whom the State relies to sustain this conviction, was a half-brother of [328] Dr. Chapman. Defendant had a claim against the estate of Chapman and this aroused the resentment of Kennedy and he preferred this charge. His story is this, that one night a few days prior to the day he named for the commission of the offense he visited Chapman and they slept in the same room that night. Prom that room the cemetery and defendant’s brickyard were visible. About midnight an electrical storm occurred and by the flashes of lightning a form of some one was revealed to Dr. Chapman, who called Kennedy’s attention to it. Chapman died before the trial of this case. The morning after the storm Kennedy says he met defendant and saw clay on his shoulder and remarked to him he must have been out riding the night before. This was in April, 1895. He says defendant then took him aside, and said he was out and got a “stiff” and had buried it in his brickyard. During the same day Kennedy asked defendant when he was going to put up a monument up there, pointing to the brickyard, and defendant answered, “Never you mind; when I want a little ready money, I can get $20 to $10 for him in Keokuk or St. Louis.” There was evidence that the grave of a Mrs. Williamson had been robbed of its body and evidence that a sack or waist with the peculiar buttons which she wore' was found in the brickyard of defendant and Kennedy says Ms impression was that defendant said it was an old lady he buried in his brickyard.
Kennedy says he reported to Chapman what defendant said, and Chapman requested him to say nothing about it, as people would say Chapman was concerned in the disinterment; that he never mentioned it until after Chapman’s death and the preferment of defendant’s claim against Chapman’s estate. The evidence tended to show that defendant was a man of good character and an industrious man. He testified and [329] denied the story of Kennedy. He was corroborated by other witnesses in several particulars. It will be observed that Kennedy did not recognize the person who was working in the cemetery on the night of the electrical storm; that defendant never told Kennedy that he had dug up Mrs. Williamson’s body and never said he could obtain $20 to $40 for her body, but said he could get that sum for him. At best this was a most indefinite extra-judicial confession, and of course alone could not sustain a conviction. No one testified to seeing defendant in the cemetery, or to finding the body of Mrs. Williamson in defendant’s brickyard. No one saw her corpse at any time in his possession. There is not a scintilla of evidence that he ever offered to sell her body to any one. It follows that the only evidence upon which the verdict can rest is the finding of a bundle of old clothes in his brickyard over a year after the supposed re-interment of Mrs. Williamson’s body therein. Now it was not shown that defendant’s brickyard was in his own exclusive possession, but on the contrary was as accessible to others as defendant. Moreover the old dressing sack had been buried for more than a year and was greatly decayed and the witnesses could only say it looked like hers, and the buttons were of the same pattern, but granting that it was her sack a whole year had elapsed before the conscience of this prosecuting witness was pricked to prefer this charge and during that time countless opportunities had been afforded others as well as defendant to bury those clothes in the open brickyard at night. The value of recent possession of the fruits of crime as evidence depends upon its being recent and exclusive, and in this case there was neither. State v. Castor, 93 Mo. 242; 3 Greenl. Ev. [15 Ed.], see. 33. But if the evidence had been sufficient to establish that defendant had disinterred Mrs. Williamson and buried her in the [330] brickyard, the State still came short of establishing the charge of either count in the indictment. There was no evidence, as was said in State v. Fox, 136 Mo. 139, tending to show that he had offered her body or contracted it for sale; that he had attempted to ship it away from Lemon Station, or that it had a marketable value. The loose remark to Kennedy, if made by defendant, that if he got hard up he could get $20 to $10 in Keokuk or St. Louis for Mm can not be tortured into an admission that he was going to sell Mrs. Williamson’s body. He had never admitted he had her body. Neither is there any evidence that he obtained it for the purpose of dissecting it, or for the purpose of surgical or anatomical experiment, and so the case must fall because the defendant having been indicted for- the violation of specific 'statutory provisions the evidence must establish one of the acts denounced-as criminal. Had the case been made out the sentence would have been affirmed, notwithstanding the conduct of the prosecuting witness calls for rebuke. It is obvious that the power of the State was invoked to gratify personal spite, and Dot to maintain the dignity of the law. But in our opinion neither charge was substantiated. Suspicion founded wholly upon the inconclusive circumstance of the finding of a lot of buried clothes twelve months after they were alleged'to have been buried in an open lot, accessible to the public, will not suffice to establish the corpus delicti of the offense charged in the indictment. The judgment is reversed and prisoner discharged.
Sherwood and Burgess, JJ., concur.