PARK AND 
CEMETERY. 
82 
CEMETERY LA 
The Omaha Desecration Case 
The supreme court of Nebraska 
has reversed, on the appeal of Calla- 
han vs. State, 119 Northwestern Re- 
porter, 467, the conviction of the ap- 
pellant (defendant in the court be- 
low) of assisting and procuring a 
grave digger, Clark, to dig up and dis- 
inter the remains of an unknown per- 
son without the knowledge of the rel- 
atives and without lawful authority. 
The defendant was the superintendent 
of a cemetery in Omaha, which had 
been in existence for many years, and 
was incorporated in 1892. 
Prior to the incorporation the cem- 
etery was uninclosed, and while inter- 
ment had been made for many years 
in and about the cemetery grounds, 
no records had been kept and many 
graves were unmarked and undistin- 
guishable from the surrounding 
ground. The evidence showed that at 
the place where the new grave was 
dug and the old one in question dis- 
turbed there was no indication that 
the ground had ever been disturbed, 
and that neither the digger nor the 
defendant superintendent knew that 
there had been an interment. The evi- 
dence also showed that the superin- 
tendent had no knowledge that any 
remains had been disinterred or dis- 
turbed by the grave digger until a 
long time afterward. The state based 
its case, therefore, upon the proposi- 
tion that prior to this time the defend- 
ant, as superintendent, had given the 
digger certain general instructions as 
to what he should do in the event that 
he should come upon human remains, 
and that what was done in this in- 
stance was done in compliance with 
the general instructions, and that 
since the defendant gave such instruc- 
tions, he aided the digger to disinter 
the remains and thereby committed 
the crime. 
But conceding the state’s conten- 
tion that general directions may ren- 
der one giving them guilty of a spe- 
cific crime, it will be seen, the court 
says, that the defendant’s guilt under 
these circumstances rested entirely 
upon the proposition that his general 
instructions to the digger directed 
him to do the acts complained of. 
However, the evidence relied on was 
not as to the grave the desecration 
of which was charged, but referred to 
another grave which the digger dug 
in which remains were found. 
The digger’s testimony fell short of 
establishing the fact that any general 
instructions were ever given to him 
W AS SEEN BY 
by the defendant which authorized the 
removal and reinterment of the re- 
mains found in the excavation de- 
scribed. 
In a prosecution against the super- 
intendent of a cemetery for unlawfully 
assisting and procuring another to 
disinter human remains, where the 
evidence is that the accused had no 
knowledge of the disinterment, and 
the state relies upon general instruc- 
tions to a person employed as a grave 
digger as constituting the inciting and 
assisting act, instructions in another 
and a particular instance are not suf- 
ficient to support a conviction. And 
the evidence set forth in the opinion 
in this case is held not to have con- 
stituted such instructions to a laborer 
as to warrant a conviction m a case 
where it was shown that no knowl- 
edge of the disinterment was had by 
the superintendent until some time 
after the act had been performed. 
The nature of the testimony was 
such as to shock the minds of all nor- 
mally constituted persons, and it was 
likely to excite hostility and prejudice 
in the minds of the jurors toward any 
person accused of being guilty of such 
acts or their procurement. There was 
the more reason, therefore, that the 
evidence by which it was sought to 
establish a connection of the accused 
with the principal act should be 
closely scrutinized; and, if it failed 
to establish such connection, the case 
should not have been permitted to go 
to the jury. 
The court adds that, while it can- 
not sustain this conviction, it thinks 
enough was shown in the case to jus- 
tify the belief that the authorities in 
charge of the cemetery had not exer- 
cised the careful supervision and con- 
trol over their employes which is nec- 
essary where new burials are made in 
an old cemetery. It is very probable 
that this prosecution may serve a use- 
ful purpose by ending a careless and 
unlawful practice. 
Legacy for Perpetual Care Refused 
by Town 
The supreme court of Rhode Island 
says that in the case of Rhode Island 
Hospital Trust Co. vs. Town Council 
of Warwick, 71 Atlantic Reporter, 644, 
the trust company, as executor of the 
will of Henry W. Greene, late of 
Warwick, filed what is called a bill in 
equity, asking the court for instruc- 
tions. The bill recited that the testa- 
tor made a bequest to the Town 
Council -of Warwick of $500, the in- 
come of which was to be applied to 
THE COURTS 
the ornamenting and keeping in re- 
pair of his burying-ground forever. 
But the town council, after repeated 
offers from the trust company to pay 
the legacy, declined to accept it. 
As argued by counsel for the trust 
company this legacy was plainly a 
private, as distinguished from a pub- 
lic or charitable, trust, and would be 
clearly void for perpetuity, and would 
fall into the residue and go to the 
residuary legatees, or be distributed 
as intestate to the next of kin, but 
for the Rhode Island statute reading: 
“Such town councils may take and 
hold to them and their successors in 
office, all such lands within their re- 
spective towns, as shall be conveyed 
to them in trust for burial purposes, 
and, in like manner, may receive and 
hold all funds that shall be conveyed 
to them for the purpose of ornament- 
ing or keeping in repair such burial 
lots or any other burial lots within 
their respective towns, and execute 
said trusts in accordance with the 
terms contained in the instruments of 
conveyance.” 
The question therefore was; Did 
the statute save the legacy, so that 
the court could, by the appointment 
of a new trustee, or in any other way, 
provide for its administration. 
The court is of the opinion that the 
statute did save it. But in the present 
condition of the law the court holds 
that it has neither power to compel 
the town council to accept the trust 
nor to appoint a new trustee to act 
in their place. As the statute has 
made provision for such a perpetual 
trust a testator has a right to avail 
himself of such provision by means 
of a legacy to a town council for 
such uses in his last will. A valid 
trust having been created by the will, 
the fact that the trustee named has 
hitherto declined to act does not in- 
validate the trust. Furthermore, the 
fact that several successive town 
councils of the town have declined to 
accept the legacy does not preclude 
the possibility that the present or 
some future council may accept it. 
Considering this possibility, and the 
inability of the complainant to settle 
its account, the court is of the opinion 
that the complainant may be per- 
mitted to pay the sum into the regis- 
try of the court, in order that the 
complainant may be permitted to 
settle its account and be relieved from 
further responsibility in respect to 
this fund, and that opportunity may 
be given the town to accept it. 
