visions of this chapter, is punishable by fine not less than two thousand dollars, or by imprisonment in the State prison not exceeding three years.

285. Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the State prison not exceeding ten years.

Incest.-Incest is a statutory offense-14 Cal. 159; 1 Morris, 330; 2 Met. 193; 11 Ohio St. 328; 11 Ga. 53. It is a joint offense-49 Ind. 544; S. C. 1 Am. Cr. R. 354. And the lex fori arbitrates as to the relationship -Whart. Conf. of L. § 136. In Iowa, intermarriage within the prohib ited degrees is incest, without carnal knowledge-34 Iowa, 547. In Ohio, emissis seminis was once essential-22 Ohio St. 541; S. C. 1 Green C. R. 662; but elsewhere it was held not necessary-34 Iowa, 547. A bare solicitation is not indictable-82 Ill. 191; S. C. 2 Am. Cr. R. 329; 54 Pa. St. 209; 39 Mass. 476. In California, the attempt must be manifested by acts which would end in consummation, but for the intervention of circumstances, independent of the will of the party-14 Cal. 159. But sending for a magistrate is not an attempt to contract an incestuous marriage-14 Cal. 15).

Prohibited degrees.-Criminal intercourse with a daughter is incest -11 Ga. 53; and the offense may be committed with a natural as well as a legitimate daughter-11 Ala. 289; 30 id. 251. It is not incest for a man to cohabit with his step-daughter-47 Miss. 278; the relation of step-daughter and step-father ceases to exist on its termination by death or divorce-22 Ohio St. 541; S. C. 1 Green C. R. 662. Brother and sister mean the offspring of the same parents; they do not necessarily imply legitimacy of birth-34 Iowa, 547. See Desty's Crim. Law, § 58 a. See Čiv. Code, § 59.

286. Every person who is guilty of the infamous crime against nature, committed with mankind or with any animal, is punishable by imprisonment in the State prison not less than five years.

Crime against nature.-Sodomy is the carnal knowledge committed against the order of nature by man with man, or by man with woman in an unnatural mannner, or by man or woman with a beast-5 Parker Cr. R. 200. Consent or non-consent is immaterial-8 Car. & P. 604; 3 Cox C. C. 270; the party consenting being an accomplice-111 Mass. 411. See Rosc. Cr. Ev. 944; unless committed on a child under fourteen-1 Denison, 864; Law R. 2 C. C. 12. It is sexual connection per anumRuss. & R. C. C. 331; see 1 Va. Cas. 307, with mankind or beast, but not with fowl-2 Whart. C. L. 8th ed. § 579. Attempts and assaults to commit the offense are indictable-3 Q. B. 180; 1 Moody C. C. 34; Law R. 2 C. C. 12; 8 Car. & P. 417.

287. Any sexual penetration, however slight, is sufficient to complete the crime against nature.

Penetration is essential to the offense-Russ. & R. C. C. 331; see 8 Car. & P. 604; and without emission it is sufficient-1 Va. Cas. 307; 3 Har. & J. 154.

CHAPTER VI.

VIOLATING SEPULTURE AND THE REMAINS OF THE DEAD.

$290. Unlawful mutilation or removal of dead bodies.

§ 291. Unlawful removal of dead body from grave for dissection, etc. $292. Who are charged with the duty of burial.

§ 293. Punishment for omitting to bury.

§ 294.

§ 295.

Who are entitled to custody of a body. Arresting or attaching a dead body. § 296. Defacing tombs and monuments.

§ 297. Unlawful interments.

290. Every person who mutilates, disinters, or removes from the place of sepulture the dead body of a human being without authority of law, is guilty of felony. But the provisions of this section do not apply to any person who removes the dead body of a relative or friend for reinterment.

Violation of sepulture.-It is a crime at common law to wantonly or illegally disturb a corose-8_Pick. 370; 19 id. 304; 10 id. 37; 1 Leach, 497; Russ. & R. C. C. 367; 7 Cox C. C. 214; or to remove one-7 Cox C. C. 214. It is not necessary that all engaged should be actually present, provided they are near enough to render assistance-6 Blackf. 110. The wife loses all control over the body of her husband after its burial-42 Pa. St. 293.

291. Every person who removes any part of the dead body of a human being from any grave or other place where the same has been buried, or from any place where the same is deposited while awaiting burial, with intent to sell the same, or to dissect it, without authority of law, or from malice or wantonness, is punishable by imprisonment in the State prison not exceeding five years.

Body-snatching.-It is a crime to dig up and remove a dead body for gain or for dissection-4 Blackf. 328; 19 Pick. 304; 10 id. 37; Dowl. & R. 13; 1 Leach, 497; 8 Cox C. C. 18; or to sell a dead body for dissec tion-8 Cox C. C. 18.

292. The duty of burying the body of a deceased person devolves upon the persons hereinafter specified:

1. If the deceased was a married woman, the duty of burial devolves upon her husband.

2. If the deceased was not a married woman, but left any kindred, the duty of burial devolves upon the person or persons in the same degree nearest of kin to the deceased, being of adult age, and within this State, and possessed of sufficient means to defray the necessary expenses.

3. If the deceased left no husband nor kindred answering the foregoing description, the duty of burial devolves upon the coroner conducting an inquest upon the body of the deceased, if any such inquest is held; if there is none, then upon the persons charged with the support of the poor in the locality in which the death occurs.

4. In case the person upon whom the duty of burial is cast by the foregoing provisions omits to make such burial within a reasonable time, the duty devolves upon the person next specified; and if all omit to act, it devolves upon the tenant; or if there is no tenant, upon the owner of the premises, or master, or if there is no master upon the owner, of the vessel in which the death occurs or the body is found.

Duty of burial.-At common law, it is a misdemeanor for one, whose duty it is to have a dead body buried, to refuse or neglect to bury it -1 Me. 226, if he have sufficient means to do so-5 Cox C. C. 379; 2 Denison, 325; or to prevent the burial-Willes, 537; or to willfully obstruct and interrupt the burial service-4 Barn. & C. 902; 2 Strange, 699; or to bury a body of one who died a violent death before or without a coroner's inquest-1 Salk. 377; 7 Mod. 10; or to throw a dead body into a river without the rites of a christian burial-1 Me. 226. A statute, which empowers boards of health to regulate burial-grounds and interments, includes the removal of dead bodies-13 Allen, 546. The statute applies only to burial-places dedicated in the mode pointed out by statute-9 Ind. 172.

293. Every person upon whom the duty of making burial of the remains of a deceased person is imposed by law, who omits to perform that duty within a reasonable time, is guilty of a misdemeanor; and, in addition to the punishment prescribed therefor, is liable to pay to the person performing the duty in his stead, treble the expenses incurred by the latter in making the burial, to be recovered in a civil action.

294. The person charged by law with the duty of burying the body of a deceased person is entitled to the custody of such body for the purpose of burying it; except that in the case in which an inquest is required by law to be held upon a dead body by a coroner, such coroner is entitled to its custody until such inquest has been completed.

295. Every person who arrests or attaches any dead body of a human being, upon any debt or demand whatever, or detains or claims to detain it for any debt or demaud, or upon any pretended lien or charge, is guilty of a misdemeanor.

296. Every person who willfully and maliciously defaces, breaks, destroys, or removes any tomb, monument, or gravestone, erected to any deceased person, or any memento or memorial, or any ornamental plant, tree, or shrub, appertaining to the place of burial of a human being, or who shall mark, deface, injure, destroy, or remove any fence, post, rail, or wall of any cemetery or graveyard, is guilty of a misdemeanor.

Violation of sepulcher.-It is an offense at common law to deface tomos, monuments, graves, burial-lots, etc.-3 Coke Inst. 202; 2 Bish. C. L. 6th ed. § 1188. If a place has once acquired the character of a cemetery, it does not cease to have it by mere, disuse-7 Allen, 299. See Pol. Code, §§ 3074-3082.

297. Every person who shall bury or inter, or cause to be buried or interred, the dead body of any human being, or any human remains, in any place within the corporate limits of any city or town in this State, or within the corporate limits of the city and county of San Francisco, except in a cemetery, or place of burial, now existing under the laws of this State, and in which interments have been made, or that is now or may hereafter be established or organized by the board of supervisors of the county, or city and county, in which such city or town, or city and county, is situate, shall be guilty of a misdemeanor. [In effect March 30th, 1874.]