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Jaa. 1893.] Hackbtt v. Hackbtt. 766

tion^ or moral obligation. It should accompliah the object in
a becoming manner/' It is also added that to give this right to
the next of kin takes from the widow the right to bury her dead
and gives it to kindred^ who, perhaps, had no affection for her
husband and very little of his blood in their yeins. It also gives
the right to classes, which might lead to unseemly contentions.
In 10 Albany Law Journal, 70, reference is made to the Secor
case, heard in the supreme court of Eangs county, the report of
which we have not been able to find. It was a suit by a widow
to enjoin a son from removing the remains of his father, which
had been buried by the widow without dissent, to a lot purchased
by the son for a family burial place, pursuant to instructions from
his father and partly with his own money. The court granted
the injunction against the son. Mr. Justice Pratt remarked:
**Those bound by the closest ties of love to the deceased while he
was alive should render these sacred rites, and they ought not to
be left to others.''

For these reasons, we are of the opinion that, as a general rule,
the primary right to control the burial of a husband should be
with the widow, in preference to the next of kin, dependent, how-
ever, upon the peculiar circumstances of the case or the waiver of
such right by consent or otherwise. In all the cases, the matter
of consent is a controlling element, where the body has been bur-
ied. In the present case, it is claimed that there was simply non-
resistance, coupled with a protest, on account of threats and fear
of a disgraceful scene, but no consent by the respondent. If
consent obtained by coercion, or by an undue advantage taken of
one's physical and mental prostration, be sufficient to vitiate a
mere contract, for a stronger reason should it be so in a case which
touches far more keenly the feelings, privileges, and comfort of
one bereaved by death. So in Weld v. Walker, 130 Mass. 428,
39 Am. Rep. 465, under precisely similar allefrations, a husband
was allowed to remove the body of his wife, after burial, from a
*•• lot owned by members of her family to a lot owned by him-
flelf. In the present case, as we have heard no testimony, the
question of consent must stand for hearing.



BURIAL RIGHTS.— A widow has the right to the costody of th«
>Hx]y of her deceased husband for the purpose of preservation, prepara-
tion, and burial, and may maintain an action against anvone who mnti*
lates or destroys it: Larson v. Chase, 47 Minn. 807; 28 Am. St. Rep.
370, and note. In Wynkoop T. Wynkoop, 42 Pa. St. 298, 82 Am. Dee.
506, it is held that a widow has no right to or control over the body of
her deceased husband after the interment, and that the disposition of the



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766 State v. Fitzsimon. [R. L

remains of a deceased person after burial belongs thereafter ezclndvely
to his next of kin. To this case is appended an exhaustive mono-

a hie note on the rights and duties of relatives and others respecting
88 of the dead.



Statb t;. Fitzsimon.

[U Bhods Jmlasj>, 286.1

INDIOTMBNT-JOINDER OP OFFENSES.— At common law,
■everal felonies or misdemeanors could be joined In sevenU couuts
of the same indictment, but a felony and misdemeanor could not be
■o Joined.

INDICTMBNT-JOINDER OF FELONY AND MISDEMEANOR.
By virtue of statutory provisions, two offenses committed by ihi* same
person, though one is a lelony and the other a misdemeanor, may be
included in the same indictment, where they are of the same geuerai
nature, and belong to the same family of crimes, and where the
mode of trial and nature of punishment are also the same.

INDICTMENT FOR FEI^ONY— CONVICTION OF LESSER
OFFENSK— At common law there could not be a conviciioii oi a misde-
meanor on an indictment for a felony; but, by virtue of statutory pro-
visions the Jury may, on an indictment for felony, convict of any
lesser offense included therein.

INDICTMENT-BURGLARY AND ASSAULT TO RAPS^-^OIN-
DER.— The offenses of burglary and an assault with an intent to com-
mit rape are not cognAte offenses, and cannot be joined by separate
counts in the same indictment

TRIAL, WHEN NOT "FULL, FAIR, AND IMPARTIAL."— A
party who has been forced to defend himself, on the same indictment,
against two inconsistent and widely different offenses, can hardly
be said to have had a **full, fair, and impartial trial."

NEW TRIAL— INDICTMENT— MISJOINDER OF COUNTS.— On
petition for a new trial, a defendant charged with crime may insist
both that the court erred In its rulings of law and that the verdict was
against the evidence. He may« therefore, take advantage of the mis-
Joinder of counts in the indictment ag<iiust him.

RAPE— EVIDENCE AS TO CHASTITY.— In a prosecution for an
assault with intent to commit rape, the elm meter of the wonuin as
to chastity may be attacked, but specific acts of uncliastlty with other
men than the defendant cannot be shown.

, ASSAULT TO RAPE-WOMAN'S STATEMENTS AS PART OF
RES GESTAE.- lu a prosecution lor an assault with intent to commit
rape, what the woman said aL>out the affair immediately after its
occurrence is a part of the res gestae and is admissible evidence
against the man.

BUR(iLARY— DISTINCT OFFENSES— EVIDENCE.— If the evi-
deuce in a burglary case shows that the defendant twice entered the
house on the same night within a space of two hours, it is not error
to refuse to rule that tliis constituted two separate burglaries, and
that the prosecuting officer should be compelled to elect upon which
one he would go to the Jury. Even if the breakings were separate
and distinct felonies, evidence of the second breaking is competent to.
show the whereabouts of the defendant during the night in question.



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March, 1893.] State v. Fitzsimon. 767

Indictment for bnrglary. On defendants petition fof a nev
txiaL

Bobert W. Burbank^ attorney general, for the state.

George J. West and Patrick J. McCarthy^ for the defendant.

»« TILLINGHAST, J. One of the principal reasons urged
by the defendant in support of his position for a new trial is the
joinder in the indictment of a count for assault with intent to
commit rape with a count for burglary, whereby he alleges that
he was embarrassed and prejudiced in his trial, the court below
refusing to compel the attorney general to elect upon which of
said counts he would go to the jury. At the common law, the
general rule of practice was to allow several felonies, or several
misdemeanors, ^^"^ to be charged in several counts of the same in-
dictment, but not to allow of the joinder of a felony with a mis-
demeanor: 2 Hale's Pleas of the Crown, 173; Eex v. Fuller, 1
Bos. & P. 180; Rex v. Benfield, 2 Burr. 980; 1 Chitt/s Criminal
Law, 208, 209; Storrs v. State, 3 Mo. 9; Scott v. Commonwealth,
14 Gratt. 687, 694; Harman v. Commonwealth, 12 Serg. & B.
69, 70. Nor could there be a conviction of a misdemeanor on an
indictment charging a felony: Rex v. Cross, 1 Ld. Raym. 711;
2 Hawkins* Pleas of the Crown, c. 47, sec. 6. The reason for
this rule, as stated by Paxon, J., in Hunter v. Commonwealth,
79 Pa. St. 503, 505, 21 Am. Rep. 83, "was that persons indicted
for misdemeanors were entitled to certain advantages at the trial,
such as the right to make a full defense by counsel, to have a copy
of the indictment and a special jury, privileges not accorded to
those indicted for a felony^': See, also. State v. Smalley, 50 Vt
736, 749. By the passage of the statute of 7 William IV, and 1
Victoria, chapter 85, section 11, known as 'Tliord Denman^s act,**
however, which makes it lawful for the jury, in case of felonies
conmiitted against the person, to acquit the defendant of the
felony, and find him guilty of a constituent misdemeanor, said
rule was practically abrogated, and it is to be presumed, therefore,
that the reason on which it was based no longer. exists: See Regina
T. Bird, 2 Den. C. C. 99. Later English statutes and decisions
have still further modified the rigor of the common law in regard
to the matter now under consideration: See Stephen's Digest
of Criminal Procedure, 178-181; Ferguson's case, Dears. C. C.
427. The common-law rule first above referred to, that a felony
and a misdemeanor should not be joined in the same indictment,
was based upon substantially the same reasons as the rule which
prohibited the conviction for a misdemeanor under an indict-



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768 Statb t^. FiTZBiMOK. [R. L

ment for felony. It cannot be contended^ however^ that the rea-
son of said rule, even if it were still in force in England, has any
application in those states, where, like our own, the defendant
in any indictment whatsoever is not only entitled to the assistance
of counsel, who are furnished and paid by the state if he is too
poor to furnish his own, but ^^^ where he may testify in his own
behalf, call witnesses at the expense of the state, if need be, and
have every privilege and facility possible for making a full and
complete defense. Indeed, as said in Hunter v. Commonwealth,
79 Pa. St. 503, 21 Am. Rep. 83, "by the merciful provisions
of our criminal law, the higher and more atrocious the crime, the
more numerous are the safeguards thrown around the accused,
and the more jealously does the law guard every legal right to
which he is entitled.'' The practice has always been in this state,
on an indictment for felony, to allow the jury to convict of any
lesser offense included therein (See Pub. Stats«, c 248, sec. 23),
and also to allow of the joinder of a count for misdemeanor with
a count for felony, where the offenses are cognate, such as larceny
and the receiving of stolen goods, and rape and an assault with in-
tent to commit rape: State v. Hazard, 2 R. I. 474; 60 Am. Dec.
96. And whether, in case of such joinder, the attorney general
shall be compelled to elect upon which count he will ask for a
conviction rests in the discretion of the trial court: Wharton's
Criminal Pleadincr and Practice, 9th ed., sees. 294-297, and cases
cited; State v. :Maloney, 12 R. I. 261; State v. Bell, 27 Md. 675,
677; 92 Am. Dec. 658; Wall v. State, 51 Ind. 453, 454. An
examination of the decisions in other states upon the question of
the joinder of counts for felony and misdemeanor in the same
indictment shows that while they are by no means uniform, yet
that such practice is generally allowable in all cases, "except
where the offenses charged are repugnant in their nature and
legal incidents, and the trial and judgment so incongruous as to
deprive the defendant of some legal advantage": Henwood v.
Commonwealth, 52 Pa. St. 424. In other words, the general
rule is, that felonies and misdemeanor forming part of the de-
velopment **^ of the same transaction may be joined in the
same indictment: Wharton's Criminal Pleading and Practice,
sees. 285-294 and cases cited; Harman v. Commonwealth, 12
Serg. ft R. 69: Commonwealth v. McLaughlin, 12 Cush. 612; 10
Am. & Eng. Ency. of Ijaw, 599 c, and eases cited in note 4; State
V. Lincoln, 49 N*. H. 464; Stevens v. State, 66 Md. 202; Staeger
v. Commonwealth, 103 Pa. St. 4G9, 472. In Cawley v. State, 37
Ala. 152, 153, Walker, C. J., says: ''After an elaborate and care-



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Jf arch, 1898.] Statb v. Fitzsimov. 769

^1 review of the authorities, we feel safe in announcing the con-
•elusion, that two oEenses committed by the same person may be
included in the same indictment, where they are of the same
general nature and belong to the same family of crimes, and
where the mode of trial and nature of punishment are also the
<fiame/'

The first question which arises in the case at bar then, is this:
Are the offenses of burglary and an assault with an intent to
•commit rape cognate offenses? We do not think they are.
Burglary is the breaking and entering tJie du'elling-lioiu-e uf an-
other in the night-time with intent to commit a felony therein,
whether the felonious intent be executed or not: Kussell oi:
Crimes, 6th Am. ed., 786; 4 Blackstone's Commentaries, 1^27;
while an assault with intent to conmiit rape is merely a statutory
misdemeanor, entirely distinct from and having no necessary
connection witb the first-named crime. Nor are said olteiisifr
ao related that the greater necessarily includes the less, as is the
•case in murder, which includes manslaughter, and in rape, which
includes an assault with intent to commit rape: Commonwealth
V. Thompson, 116 Mass. 346. Moreover, our statutes recognize
« marked distinction between burglary and assault with intent to
•commit rape, by classing the former with "offenses against private
property,*' and the latter with "offenses against the person":
Pnb. St;iLs., CO. 240, 242. We have been rel'erred to no case in
which such a joinder as the one now before us has ever been
^IIowchU and a somewhat thorough examination of the authorities
aatisfies us that none can be found. For a full discussion of the
genend (]ue:^tion involved, see *^® Archbold's Criminal Pleading
and Practice, 8th ed., 292-300, and cases cited; Gilbert ▼•
■Georgia, 65 Ga. 449; State v. Hooker, 17 Vt. 668; Bex v. Gallo-
way, 1 Moody C. C. 234; Young v. The King, 3 Term Rep. 98;
People V. Tweed, 5 Hun, 353; State v. Boise, 1 McMull. 189;
Kane v. People, 8 Wend. 203; Cook v. State, 24 N. J. L. 843;
Commonwealth v. Doherty, 10 Cush. 52; Crowley v. Common-
wealth, 11 Met. 575, 579; Campbell v. People, 109 HI. 566; 50
Am. Rep. 621; Stevick v. Commonwealth, 78 Pa. St. 460, 463;
1 Bishop on Criminal Procedure, sees. 199-213, and cases cited.

We are aware that the case is not before us on a motion in
arrest of judgment, although it appears from the record that
fiuch a motion was made in the court below, and overruled; and
that exception was duly taken to said ruling. We think, how-
•ever, that under the broad provisions of our statute relating to
new trials (see Pub. Stats., c. 221, sec. 2), the defendant may \m

Am. St. Bkp., Vou XLIX. —49

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770 State t?. Fitzsimon. [R. L

permitted to take advantage of so incongmonfl charges aa fhoae
contained in this indictment^ on a petition like this. For it can
hardly be said that a party has had a ''full, fair, and impartial
trial,'' who has been forced to defend himself, on the same in-
dictmenty against two inconsistent and widely different offenses.
Moreover, under onr practice, on a petition for new trial the
petitioner may proceed at once, as he has done in this case, on the
two grounds that the court has erred in its rulings and that the
verdict is against the evidence: Elliott v. Benedict, 13 B. I. 463,
467.

We do not think the court erred in refusing to allow the de-
fendant to offer evidence of intimacy on the part of the woman
assaulted with other men than the defendant While the char-
acter of the prosecutrix for chastity may be attacked by the de-
fendant in a case of this sort, we do not think that specific acts
of improper conduct with other men can be shown: 1 Greenleaf
on Evidence, 13th ed., sec. 54, and cases cited in note 1; Begina
V. Holmes, 13 Cox C. C. 137; McCombs v. State, 8 Ohio St 643;
State V. Foshner, 43 N. H. 89; 80 Am. Dec. 132; State v. Knapp,
45 N. H. 148; **^ Wharton's Criminal Law, sec. 1161. In civil
cases growing out of an alleged indecent assault, it has been held
that both the character of the woman assaulted for chastity, as
well as specific acts of unchastity, may be shown in defense:
Mitchell V. Work, 13 E. L 646.

The court did not err in permitting the state to prove what
the prosecutrix said to a person in the house about the affair im-
mediately after its occurrence, as it was clearly part of the res
gestae: State v. Murphy, 16 R. I. 628; McCombs v. State, 8 Ohio
St 643; Bex v. Clarke, 2 Stark. 241; State v. Patrick, 107 Mo.
147, 163-168. While the evidence submitted on the part of the
state tends to show that the defendant did in fact enter the house
at two difFerent times on the night in question, yet, as it also tends
to show that both of said entries were made in pursuit of but one
purpose, to wit, the commission of a felony, and that his design
being frustrated on his first entry by being frightened away by
the inmates of the house, he re-entered about two hours later, the
court did not err in refusing to rule that this constituted two
separate burglaries, and that the attorney general should be com-
pelled to elect upon which one he would go to the jury: See
Bishop's New Criminal Tjaw, sec. 793. But even if the second
breaking could be properly regarded as a distinct and separate
offense from the first, it was nevertheless competent evidence as
tending to show the whereabouts of the defendant during the



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Marchi 1898.] Statb t^. Fitzsimon. 771

night in question. And especially ib this trae^ when, as in thia
case^ the two breakings, if such there were, were only separated
in point of time by the brief space of about two hours: People v.
Mead, 50 Mich. 228. As there must be a new trial of the case
for the reason first above given, we express no opinion as to the
sufficiency of the evidence to warrant a conviction on either of
said counts.
Petition granted.

INDICTMENT -JOINDER OP OFFENSES-ELECTION.— Under
the coTnmon-law rule, where there can be no conviction for mlBdemeanor
on an indictment for felony, oounts for felony and mi84emeanor ahonld
not be joined ; but where, on an indictment for felonv, a conviction for
a misdemeanor is allowable, counts for felony and misdemeanor, srowing
out of the same transaction, and of the same general nature and course
of trial, may be joined: See monographic note to Ben v. State, 58 Am.
JDec. 250, on charging two or more offenses in the same indictment.
So several distinct felonies may be charged in the same indictment,
wiien all relate to the same transaction, and admit of the same legal
judgment, and, as a rule, the prosecution will not be required to elect
on which count it will proceed in such case : State v. Houz, 109 Mo. 654 ;
82 Am. St. Rep. 686. The state may be rec^uired to elect upon which
count of an indictment it will claim conviction, only when distinct
felonies not of the same character are charged in different counts in the
same indictment: Baker v. State, 25 Tex. App. 1; 8 Am. St. Rep. 427.
Election will not be compelled where the indictment does not designate
a particular act, and there is evidence on the part of the prosecution
tending to show more than one act. The principle of election is applic*
able only when there is evidence of separate and distinct transactions:
Black V. Stat(>, 83 Ala. 81 ; 3 Am. St. Kep. 691. It is, however, a mat*
terof discretion with the court, and wherever the joinder of distinct '
offenses, growing out of different transactions, in one indictment, though
allowable as a matter of law, tends to embarrass the prisoner, and con-
found him in his defense, the court ought to require an election, not
only where distinct felonies are charged, but where misdemeanors are
joined, or misdemeanors and felonies: See monographic note to State
V. Bell, 92 Am. Dec. 663, on when the vrosecutor may be required to
elect on which of several counts of an indictment he will proceed. The
prosecutor is not compelled to elect, unless ii appears that more than
one offense is charged in the indictment: Engleman v. State, 2 Ind. 91;
52 Am. Dec. 494. Upon an indictment for a crime, the defendant may
be convicted of the lesser degrees thereof included therein: People v.
Abbott, 97 Mich. 484; 37 Am. St. Rep. 360; Whilden v. State, 25 Ga.
896; 71 Am. T)ec. 181. See monographic note to Whitford v. State, 6
Am. St. Rep. 899, on merger of crimes.

RAPE— EVIDENCE— RES GEST^.— In prosecutions for rape, the
general chararter of the prosecutrix for chastity may be impeached, but
st>eciflc acts of sexual intercourse by her with third persons cannot be
shown : Note to People v. Hartman, 42 Am. St. Rep. Ill ; Rice v. State,
85 Fla. 236; 48 Am. St. Rep. 245. and noie; People v. McLean, 71 Mich.
309; 15 Am. St. Rep. 203. In cases of rape, anything which the woman
said or did about the affair immediately afterward is admissible as
original evi'^ence, whether she tcstifiepor not: Castillo v. State, 31 Tex.
Or. Rep. 145: 37 Am. St. Rep. 794. This point is discussed in detail in
the monographic note to Smith v. State, 80 Am. Dec. 371, on rape.



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772 Balderston v. National Rubbbb Ca [R I.

Baldebston v. National Subbeb Company.

[18 Rhode InuND, 888.]
FACTORS.— ADVANCES ARE moneys paid by the factor to hit
principal on the credit of the goods consigned, and In anticipation of
the debt which will become due to the principal upon the sale of
such goods.

FACTORS.— AN ADVANCE by a factor does not have the effect
of creating a present indebtedness against the consignor.

FACTORS-IJEN— ADVANCES.-A factor must enforce his Uen
for advances against the property in his hands before he can claim
payment from his principal, the consignor of the property.

FACTORS— DEL CREDERE AGENT.— A factor who sells under
a del credere commission is liable as a principal debtor to the con-
signor, and may be sued in indebitatus assumpsit, if he does not pay
the sale debt when due.

FACTORS-DEL CREDERE AGENT.-If a factor, selling under
a del credere commission, receives goods from his principal and
makes monthly advances, pursuant to agreement, up to eighty per
cent of the market value of the goods consigned for sale, he is not
entitled, upon the principal becoming insolvent and making an assign-
ment for the benefit of his creditors, to receive from the assignee a
dividend upon the whole amount of the advances made and unpaid
from the proceeds of goods sold, at the time of the assignment, but
only on the balance, if any, that is due after crediting the net pro-
ceeds, when sold, of the goods on hand at the date of the assignment

Bill in equity to establish the plaintiffs* right to a dividend from
the assignees of the National Eubber Company^ and for an ac-
count. The National Rubber Company had become insolvent
and had made an assignment for the benefit of creditors.

Joseph C. Ely, for the plaintiffs.

Francis Colwell, Walter H. Barney, and Samuel Norris, Jr.,
for the respondents.

338 TILLING HAST, J. By agreement of the parties, this
case is submitted to the court, on the following questions of law,
viz: "1. Whether, under the agreement between the complain-
ants 33» and the respondent corporation, annexed to the bill as
Exhibit A, the complainants are or not entitled to receive from
the assignee of the National Eubber Company a dividend upon
the whole amount of the advances made by them to said rubber
company and unpaid from the proceeds of goods sold at the time
of the company's assignment, or only on the balance, if any, that
might thereafter be found to be due after crediting the proceeds
when sold of the goods on hand at the date of the assignment of
said rubber company; 2. Whether or not the failure of the com-
plainant, John C. Balderston, to include said advances from said
complainants as an indebtedness of said rubber company in the



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Jaly, 1898.] Baldebston v. National Rubbxb Co. 778

retnmB made by said company under the manufacturing oorponh
tions law of the state of Rhode Island^ and signed by him as
president and director of said company, estops said complainants
from making any claim for adyances as a then present indebted-
ness from said company to said complainants, in light of the fol-
lowing:

''In the answer of the respondent it is alleged that said John
C. Balderston, one of the complainants, was a director of the
National Rubber Company, and as such director signed annual
returns of said company's affairs, as required under the provisions
of the manufacturing corporations act, so called (Pub. Stats., c
155), which returns as alleged in said answer did not include in
the statement of the company's indebtedness said advances
of the complainants, made tmder their said agreement, and the
respondents claim that said failure to set forth said advances in
said returns as indebtedness of said rubber company estops said
complainants from making any claim for said advances as a then
present indebtedness from said rubber company to said com-
plainants.

''The complainants now assert, in the way of explanation of
said returns, that the method pursued by said rubber company in
making calculation for the same was as follows: That the officers



Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 88 of 121)