stating that ”[a]t common law there can be no property in a dead human body; and after burial of such dead body it becomes a part and parcel of die ground to which it was committed. Nevertheless, the authorities hold the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect. While the body is not property in the usually recognized sense of the word, yet it may be considered as a sort of quasi property, to which certain persons may have rights, as they have duties to perform toward it, and the right to dispose of a corpse by decent sepul-ture includes the right to the possession of the body in the same condition in which death leaves it” (quotation marks omitted)
How later courts described this case
- stating that ”[a]t common law there can be no property in a dead human body; and after burial of such dead body it becomes a part and parcel of die ground to which it was committed. Nevertheless, the authorities hold the right to bury a corpse and preserve its remains is a legal right which the courts will recognize and protect. While the body is not property in the usually recognized sense of the word, yet it may be considered as a sort of quasi property, to which certain persons may have rights, as they have duties to perform toward it, and the right to dispose of a corpse by decent sepul-ture includes the right to the possession of the body in the same condition in which death leaves it” (quotation marks omitted)
- finding no traditional property right in a dead body, but noting existence of certain rights including “the right to the possession of the body in the same condition in which death leaves it.”
- fact that defendant stabbed victim twenty-four times is considered in establishing intent
- and Note thereto, 114 SW 648
Written by the judges who cited it.
The opinion
*106
BROOKS, Judge
(dissenting).—I dissent from the opinion rendered in this case. Waiving the question as to whether a court under any circumstances could order the body of the deceased exhumed for .the purpose of demonstrating whether he was shot in the back or in front, will say that this is not a case that requires any such action since the evidence shows clearly that the defendant provoked the difficulty. See Bowers v. State, 45 Texas Crim. Rep., 185 . The defendant’s uncontradicted testimony shows that he approached the deceased, and, in substance, asked him why he insulted his wife. After deceased practically admitted having done so, appellant proceeded to curse and abuse him. Among other things appellant called the deceased a damn bastardly son-of-a-bitch, deceased starting away. Appellant followed and continued to abuse him. Finally deceased turned, and in an angry tone and manner said, “Damn you, shut up,” or words to that effect, and made a demonstration as if to cut appellant with a knife. ¡Now, this statement makes the appellant guilty of at least manslaughter on the theory of- the imperfect right of self-defense; that is to say, if he provoked the difficulty with the intent to kill, it matters not what the provocation may have been—even insuR to his wife—it would be murder. If he provoked the difficulty without said intention, it would be manslaughter. So it follows that it is utterly immaterial whether he shot the deceased in the back or shot him in front. Being an immaterial issue' in this case, under the testimony of the appellant himself, it certainly was not error in the court refusing to exhume the body for that purpose.