Pennsylvania Court of Common Pleas
35 D. & C.2d 615 (1964)

 Violet Miller Keller married Elton Ray Keller on June 29, 1957, and she was not divorced from him until the first week of December, 1963.  From 1961 until the time of the trial, Elton Ray Keller was in the military service, and the parties were living separate and apart from each other.  From August of 1961, defendant had illicit and regular sexual relations with one Roy Schaeffer.  In April of 1962, defendant secretly gave birth to a female child which, defendant said, was born dead.  She wrapped the dead body in a towel and wrapped a plastic sheet around the towel and put the body in this manner into a paper carton and put the carton on a shelf in the basement of the premises wherein she had her apartment, where the body remained until discovered in August of 1963. . . . A forensic pathologist examined the remains, but, due to the extensive decomposition of the body, he was unable to determine the cause of death or whether the child was born dead or alive.  Defendant never told anyone of her pregnancy or of the birth of this child, neither did she tell anyone what she had done with the child before she was arrested.

 In March of 1963, she again gave birth to a child secretly in the bathroom of her apartment, after leaving her bed, which she was then sharing with Roy Schaeffer.  She signed a confession, wherein she stated that the child was born alive, and that she put the child’s head into the commode, intending to drown it.  Using bathroom towels, she cleaned the blood from the floor and put the towels and the body of the dead baby in  sanitary napkin box and stuffed other towels in the box and put the box in the bathroom closet.  This was in the early morning house of March 15, 1963.  She did not tell Roy Schaeffer or anyone else what had happened or what she had done with the child’s body.   Later in the day, she was taken to the hospital, and, at first, denied having recently given birth to a child and did not admit it until the child’s body was discovered as a result of a police search of her apartment on March 23, 1963. [n.1]

 Following the discovery of the bodies of these dead children, defendant was indicted for adultery and two counts of a common law misdemeanor, characterized as the “indecent disposition of a dead body.”  Following a three day trial, defendant was convicted on all three charges.  In due course, defendant properly filed a motion in arrest of judgment and a motion for a new trial. . . .

 From the present posture of the record, and from defendant’s brief, the following [issue is] raised: . . .

 . . . .  Did the court err in refusing defendant’s motion to quash the indictment, because it did not charge defendant with a crime cognizable under the laws of the Commonwealth of Pennsylvania? . . .


 Defendant does not content, nor does she argue, that the evidence is insufficient to convict her of adultery. She does, however, argue, at least in support of her demurrer to the indictment and motion to quash the indictment, that the indictment does not charge defendant with a crime under the laws of this Commonwealth.  However, at oral argument and in the brief submitted to us by defendant, there is a tacit admission that it would be a crime at common law to indecently dispose of a dead body.

 We consider the matter of common law crimes both gravely an carefully.  We have considered authorities on the subject, both under the laws of the Commonwealth of Pennsylvania and in other common law jurisdictions.  We conclude that this bill of indictment does properly charge the defendant in two separate and distinct counts with committing an offense cognizable under the common law.

 There is no statute in this Commonwealth which would make the acts chargeable to the defendant a misdemeanor.  However, the Criminal Code of June 24, 1939, P.L. 872, sec. 1101, 18 PS §5101, provides as follows:

 Every offense now punishable either by the statute or common law of this Commonwealth and not specifically provided for by this act, shall continue to be an offense punishable as heretofore.

 This statute was merely a reenactment of prior statues which have preserved common law crimes and made them part of our jurisprudence.  We are a community, indeed a nation, with but one exception, [n. 2] that has embraced the concepts and principles of the common law.  The essential characteristic of the common law, which distinguishes it as a system of law from the civil law, is its flexibility.  Under the common law, we are not powerless to cope with novel situations not comprehended or contemplated by the legislators.  In his work on the common law, Justice Holmes noted that, “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong.”  The landmark case in this Commonwealth which announces the principle of preserving common law offenses is Commonwealth v. McHale, 97 Pa. 397.  After analyzing and determining that common law crimes are preserved, Mr. Justice Paxton, at page 408, asks the question, “What is a common-law offense?”

 The highest authority upon this point is Blackstone.  In chap. 13,. Of vol. 4, of Sharswood’s edition, it is thus defined: “The last species of offenses which especially affect the Commonwealth are those against the public police or economy.  By the public police and economy I mean the due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations.  This head of offenses must therefore be very miscellaneous, as it comprises all such crimes as especially affect public society, and are not comprehended under any of the four preceding series.  These amount some of them to felony, and other to misdemeanor only.”

 Thus, from the McHale case in 1881 down to the present time, our courts have consistently recognized common law offenses under the doctrine set forth in the McHale case.  This is so even in the absence of specific common law precedent or statutory declaration.  The McHale doctrine has been held to be applicable to any conduct which is inherently offensive tot he public peace, de4cency, morals, and economy.  It is true that there is no precedent in this Commonwealth that is on all fours with the facts in this case.  Indeed, there is no case at all dealing with the indecent or immoral disposition of a dead body.  This does not surprise us.  Perhaps for the same reason that the legislators have not passed a criminal statute proscribing such conduct, we have been able to find few factual authorities.  It is undeniably the sentiment of people throughout the world that it would be unthinkable to ill treat a dead body.  However, our research into the matter has disclosed two factually similar cases, one occurring in the State of Maine and another in the State of Arkansas.

 The Maine case is reported in State v. Bradbury, 136 Me. 347, 9 A.2d 657 (1939).  Frank E. Bradbury lived with his unmarried sister Harriet.  They were old people.  Harriet was in bad health and suffered injuries in a fall on June 9th, resulting in her death at 4 a.m. on June 10th at her home.  Shortly thereafter, Frank went into the cellar and built a hot fire in the cellar furnace. He tied a rope around his sister’s dead body and dragged it down the cellar steps and shoved it into the furnace and burned it.  Being impossible to get it all in at one time, he waited for the head and shoulders to be first consumed and then he forced the remaining body further and further into the furnace until he at last got the door shut.  Neighbors complained of disagreeable odors emanating from the Bradbury home, and an investigation resulted in the discovery of this grisly deed.  Defendant was indicted and convicted of the common law offense of indecently disposing of a dead body.  The Maine court in appellate review carefully considered the proposition:  Wharton on Criminal Law, Vol. 2, §1704, wherein it is said, “Indecency in treatment of a dead human body is an offense at common law, as an insult to public decency.  Hence, it is indictable to expose such a body without proper burial; to wantonly or illegally disturb it. . . .”  In examining section 1704, Wharton also continued as follows, “A person, also, is indictable who buries or otherwise disposes of any dead body on which an inquest ought to be taken, without giving notice to a coroner, or, who, being under a legal duty to do so, fails to give notice to the coroner that a body on which an inquest ought to be held is lying unburied, before such body has putrefied.”  Footnote 20 of section 1704 contains a number of English and American cases holding it to be an offense at common law even to bury a body in such a way as to obstruct the coroner in his duties.  Thus, it is an offense at common law to obstruct or pervert public justice.

 The other case examined by us was Baker v. State, 223 S.W.2d 9809 (Ark.) (1949).  Ed White was an aged and old man drawing old age assistance from the State of Arkansas.  His check for $30 came on the first day of the month.  Defendant Mrs. Baker provided Ed with room, board, and personal attention, and, in turn, Ed would endorse the check to her by making a mark, he being illiterate.  Ed lived in a cabin on defendant’s premises and a short distance from her home.  Ed’s December 1st check was received and cashed by defendant on December 2nd, bearing Ed’s purported mark.  At 9 p.m., on December 2nd, defendant reported Ed’s death to a funeral home.  Experts who later examined Ed’s body testified that he was dead at least five days.  Decomposition and other ghastly conditions of the body had occurred.  Defendant and her witnesses had testified that they saw Ed alive as late as 3 in the afternoon of December 2nd.  Mrs. Baker was indicted and convicted of the common law offense characterized as “treating a dead body indecently.”  The court in its consideration of the case not only determined that defendant violated a duty to promptly report Ed’s death but also considered the indecent aspects of so using his dead body to get a $30 public assistance check.

 Ever since the existence of man has been evidenced thee is also evidence that there existed a standard of decency and respect for the dead and their resting places. The Holy Scripture discloses that it was a disgrace not to bury the dead:  Jeremiah 16:4.  See also Genesis 50:1-7.  Archaeologists have unearthed graves of prehistoric men indicating that they had a religious, or at least respectful, concern for dead bodies and the way and manner in which they were treated and buried.  The renowned pyramids of Egypt are but resting places for the dead and memorials to them.  Resort to American Indian lore will reveal a whole body of custom dealing with the Indian’s attitude and concept of decency with respect to dead bodies and places of burial.  Much of the Indian day’s activities were performed with a view to earning a sacred and hallowed resting place upon their death.  The Code of Justinian provided that, “… Directly the body or bones of a dead person, whether slave or free, were buried, the grounds in which they were buried became religious. . . .”   Carved on the tomb of William Shakespeare is a reflection upon early English people’s attitude toward the sanctity of the grave.  It says, “Curst be he that moves my bones.”  In the English case of Regina v. Stewart, 12 A.&E. 773, p. 778, it is declared, “We have no doubt, therefore, that the common law casts on someone the duty of carrying to the grave, decently covered, the dead body of any person dying in such a state of indigence as to leave no funds for that purpose.  The feelings and interests of the living require this and create the duty.”  So universal is the right of sep8ulture that the common law, as it seems, casts the duty of providing it, and of carrying to the grave the dead body, decently covered, upon the person under whose roof  the death takes place; for such person cannot keep the body unburied nor do anything which prevents Christian burial; he cannot, therefore, cast it out so as to expose the body to violation, or to offend the feeling or injure the health of the living, and for the same reason, he cannot carry the dead body uncovered to the grave.

 It would seem unnecessary for a further extension of this opinion to rationalize the existence in this community of a well-established and known standard of decency and morality with respect tot he disposition and treatment of dead bodies.  Yet, ,the importance of this matter commands one further observation.  From our childhood, we have all been accustomed to pay a reverential respect to the sepulchres of our fathers and to attach a character of sacredness to the grounds dedicated and enclosed as the cemeteries of the dead.  This standard of decency has been recognized by our legislators through the years, and they have made statutory provisions governing cemeteries, cemetery companies, reinterment and abandonment, crypts, burial permits, cremation, mutilation of graves and tombstones, mausoleums and vaults.  At both common law and under the statutory law of this Commonwealth, it is an offense to dig up or disturb or desecrate bodies which have been buried.  It is an outrage upon the public feelings and torturing to the afflicted relations of the deceased.  If it be a crime thus to disturb the ashes of the dead, it must also be a crime to deprive them of a decent burial, by disgracefully exposing or disposing of the body, contrary to usages so long sanctioned by people and which are so grateful to the wounded hearts of friends and mourners, and this is so, irrespective of their religious aspects of burial and life hereafter, be it Christian, Jew, or Agnostic.  We thus consider the common law as being sufficiently broad to punish as a misdemeanor, although there may be no exact precedent, any act which directly injures or tends to injure the public to such an extent as to require the state to interfere and punish the wrongdoer, as in the case of acts which injuriously affect public morality or obstruct or pervert public justice, or the administration of government.  It is the common law of this Commonwealth that whatever openly outrages decency and is injurious to public morals is a misdemeanor and punishable at law.

 We have little difficulty therefore in concluding that this bill of indictment does properly charge the defendant with a crime cognizable under the laws of the Commonwealth, and the court did not err in refusing the defendant’s motion to quash the indictment assigning therefore this reason. . . .

 [Conviction affirmed.]