25 s 
PARK AND CEMETERY, 
LEGAL. 
CANNOT REMOVE BODIES FROM LOTS NOT PAID FOR. 
A decision, the importance of which can hardly be overesti- 
mated, has been rendered by the supreme court of North Caro- 
lina, in the case of State against McLean and others. In it, the 
court affirms a judgment of the superior court, Alamance county, 
in which all but two of the defendants were convicted, as the in- 
dictment charged, of counseling, procuring, and commanding 
certain named persons, all of them charged with acting without 
due process of law, and without the consent of those persons 
whom the statute requires should be consulted, and their consent 
procured, to open the grave of Nathaniel Small, for the purpose 
of taking therefrom his dead body, and to actually remove the 
body from the grave. 
At the time the offense was committed, the defendant Mc- 
Lean was mayor of the town of Burlington, another of the de- 
fendants was keeper of the town cemetery, and the other defen- 
dants were town commissioners. 
The defense set up by McLean was that he was the attorney 
at law of the town, and that the part he took in the matter was 
simply as legal adviser to the board of commissioners. He ad- 
mitted on the trial that he advised the other defendants that they 
could lawfully remove the body. 
The other defendants, except two named Holt and Heri- 
tage, undertook to defend their action on the ground that, al- 
though they commanded, counseled, and procured the opening 
of the grave and the removal of the body, their action was in the 
discharge of their official duties, and under due process of law 
and in good faith. 
To better understand the case, the following facts must also 
be taken into account. Small died in 1887, and was buried in 
the Lutheran Cemetery in the town of Burlington. S. veral 
years afterwards the town authorities, by consent of all persons 
interested, at the expense of the town, removed the bodies which 
had been buried in the Lutheran Cemetery to Pine Hill, the 
town cemetery. The body of Small was among them. January 
5, 1897, a considerable time after the reinterment of Small’s 
body, the town authorities, who were the defendants in this 
prosecution, in regular meeting adopted a report made by the 
Committee on the business of the cemetery, which was in part in 
the following words: ‘‘Section 1. We find that eighteen lots 
have been taken and used by parties who have paid nothing for 
the same, and that said parties have no note or memorandum in 
writing in regard to the transaction, signed by the party to be 
charged; and, as to these lots, the committee recommend that 
the secretary of the board of commissioners notify the parties 
who claim the same that, unless they come forward and pay for 
said lots in full within sixty days from the date of said notice, 
that the bodies buried on said lots will be removed to that part 
of the cemetery which is free.” Notice in accordance with the 
foregoing, was received by J. W. Small, the next of kin of 
Nathaniel Small, February 1, 1897. Instead of paying the 
$13.40 demanded of him, J. W. Small forbade the removal of 
the body, and, in spite of his protest, the body was removed to 
the free part of the cemetery. 
The first assignment of error, on the appeal, related to the 
refusal of the trial judge to admit testimony offered to show the 
good faith of the defendants in the matter of their having or- 
dered, procured and commanded the opening of the grave and 
the removal of the body. But the supreme court holds that it 
was unnecessary to allege and prove a felonious intent, or, indeed, 
any specific intent, on the part of the defendants, other than the 
intent to do that which they actually did. The reason for this 
is that it holds that the statute of North Carolina forbade what 
they did in its provision: “That any person who shall without 
due process of law, or the consent of the surviving husband or 
wife, or the next of kin of the deceased, and of the person hav- 
ing the control of such grave, open any grave for the purpose of 
taking therefrom any such dead body, or any part thereof buried 
therein, or anything interred therewith, shall be deemed guilty 
of a felony, and upon conviction thereof shall be fined or im- 
prisoned or both, at the discretion of the court.” 
There are many of its decisions, the court says, to the effect 
that the only intent necessary to be shown in the doing of an act 
which is forbidden by law is the intent to do the act. If, how- 
ever, a ...rave should be opened, and a dead body removed there- 
from, by a person who had made an honest mistake as to identity 
of the grave and body, after having received the permission of 
the next of kin of the person whose grave he thought he was open- 
ing, the court says that the intent would not exist to do the act. 
Holt and Heritage, who have been mentioned by name, were 
acquitted; the former, because he was not present at any of the 
meetings at which the opening of the grave and the removal of 
the body were discussed, and the latter because he opposed the 
course pursued by the other defendant. 
The defense of McLean, the court pronounced strained, and 
said found no favor in its eyes. In putting the vote on the re- 
port of the cemetery committee and declaring the result, the 
court says he directly participated in the crime charged. It also 
says that his duty as an attorney ended when he gave his legal 
opinion (if, indeed, he could act in the dual capacity of mayor 
and legal adviser to himself and the board) that they had the 
right under the law to remove the bodies. When he went 
further, and said, “Go ahead and remove them,” he became an 
individual actor, and counseled, procured, and commanded an 
act, the committing of which afterwards was a felony. And the 
court points out that the defendants were not indicted as mayor 
and commissioners for any misconduct in office, but as individ- 
uals, for counseling, procuring, and commanding persons to 
commit a felony. They could not be said to have acted in their 
official capacity in respect to a matter which was not only not a 
part of their duty to the public, but, in its performance, was a 
positive crime against the state. 
Nor would the court accept the excuse that they made a 
mistake in the extent and scope of their power, or were misled 
by mistake of counsel. It says that they had the right to pur- 
chase land for a cemetery, and they could make proper rules for 
its management; but that power could not be extended to give 
them the right to open graves and remove the dead therefrom, 
from one point to another, without due process of law, or with- 
out the consent of those persons whose permission was necessary. 
Lastly, if a surgeon can be convicted for employing a person 
to open a grave and remove therefrom a dead body, his purpose 
being to advance medical and surgical science, the court asks, in 
answer to the suggestion that the statute was aimed only at the 
desecrators of graves, what reason can be urged against the con- 
viction of persons who command a grave to be opened and the 
body to be removed because the lot of land on which the de- 
ceased has been buried is not paid for by his next of kin? 
The work of transferring some 30,000 bodies from the old 
Union Cemetery in Brooklyn, L. I ., to Cedar Grove Cemetery 
at Flushing, five miles distant, was begun last month, and is be- 
ing vigorously prosecuted. The northeast corner of the ceme- 
tery, wherein the poor had been buried in unmarked graves, was 
first opened up and the remnants recovered were inclosed in 
boxes, according to a provision of the contract, taken to Cedar 
Grove Cemetery, and immediately reburied. There was no at- 
tempt at identification. A staff of clerks, however, takes care of 
the identification of the bodies exhumed from marked graves. 
The number of the old grave is marked on the box containing 
the remains, and the number of the grave to which it isasbigned 1 
