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closes the possibility that a prisoner will commit further crimes whereas life imprisonment does not. Concerning public opinion, Mr. Justice Stewart in Gregg concluded, primarily on the basis that 35 legislatures have recently enacted statutes that provide for the death penalty for at least some crimes, it is now evident that a large proportion of American society continues to regard it as an appropriate and necessary criminal sanction. Even the Congress of the United States, in the Antihijacking Act of 1974, enacted a statute which provides for the death penalty. Additionally, the jury is also a significant and reliable objective index of contemporary values because it is so directly involved, and actions of juries in many States since Furman are fully consistent with legislative judgments as to the continued utility and necessity of capital punishment in appropriate cases.

In view of the severe impact which assassination of the President has upon our society, and the extreme need for an operative deterrent in this area, it would seem that continuation of the death penalty

for this offense would be defensible.

Murl Larkin
Legislative Attorney
American Law D-

บ.

R

WASHINGTON, D.C. 20540

THE LIBRARY OF CONGRESS

Congressional Research Service

THE BODY OF AN ASSASSINATED PRESIDENT OF THE UNITED STATES:
ACTIONS TAKEN ON THE DEATH OF PRESIDENT
KENNEDY AND TEXAS STATE STATUTES

Following the infliction of mortal gunshot wounds in Dallas,

Texas on November 22, 1963, President Kennedy was taken to Parkland Memorial Hospital where he received treatment from a team of physicians. Efforts to save him being of no avail, he was pronounced dead at 1 p.m. Soon thereafter the decision was made that the President's body should accompany Mrs. Kennedy and Vice President Johnson to Love Field for immediate flight back to Washington, D.C. The removal of the body is described in the Report of the President's Commission on the Assassination of President John F. Kennedy (U.S. Government Printing Office, Washington: 1964):

While the team of doctors at Parkland Hospital tried desperately to save the life of President Kennedy, Mrs. Kennedy alternated between watching them and waiting outside. After the President was pronounced dead, O'Donnell tried to pursuade Mrs. Kennedy to leave the area, but she refused. She said that she intended to stay with her husband. A casket was obtained and the President's body was prepared for removal. Before the body could be taken from the hospital, two Dallas officials informed members of the President's staff that the body could not be removed from the city until an autopsy was performed. Despite the protests of these officials, the casket was wheeled out of the hospital, placed in an ambulance, and transported to the airport shortly after 2 p.m. At approximately 2:15 p.m. the casket was loaded, with some difficulty because of the narrow airplane door, onto the rear of the Presidential plane where seats had been

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removed to make room. Concerned that the local
officials might try to prevent the plane's de-
parture, O'Donnell asked that the pilot take off
immediately. He was informed that takeoff would
be delayed until Vice President Johnson was sworn
in. (at 58)

In his testimony before the Warren Commission, Kenneth P. O'Donnell, special assistant to the President, described the difficulties encountered with local Dallas officials in obtaining permission to depart with the

body:

Mr. O'Donnell. We were then all prepared to go.
The agents told me the ambulance was ready, and they
were prepared to move.

We the casket was brought out about halfway, and
a gentleman arrived who said that we would not be
allowed to remove the body from the hospital until
the necessary papers had been signed.

Mr. Specter. [Assistant Counsel for the Com-
mission] Do you know who he was?

Mr. O'Donnell. I don't recollect who he was.
I think he was maybe from the coroner's office.
My assumption is he would be.

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But he took this position. We asked
recollect who transmitted the message
speed this up as much as possible, and give us some
idea how long it took to accomplish this.
And they
went out into this other little room where there were
some telephones, and proceeded to call whoever it was
necessary to call to get this permission.

We waited about 10 or 15 minutes, and Dr. Burkley and
General McHugh were in the room, and Mr. O'Brien at
some time. I went out again and asked them if they
had an answer, and nobody seemed to be able to answer
the question as to how long it might take, and whether
it was a week or an hour.

So I was getting more concerned about Mrs. Kennedy's
state all the time--although she appeared composed,
as she had from the beginning.

Then a gentleman did arrive who has later been
identified for me as a Judge Brown, who was on the
telephone calling someone. It had been my assumption

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that upon his arrival that he had the power to permit
us to depart. Dr. Burkley was talking to him in a very
agitated manner. And the gentleman was very calm and
cool and collected. If my recollection is clear, he
said something to the effect that as of now this was
just a homicide case, and there were certain things
that had to be carried out, one of which I interpreted
as an autopsy.

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Mr. Specter. Who was it, Mr. O'Donnell, if you
recall, who said this was just another homicide case?
Mr. O'Donnell. My feeling is it was Brown, but I
really would not be in the excitement of the moment,
the discussion of the autopsy, the signing of a certifi-
cate from the hospital, and the treatment of this as a
homicide case,
I would not want to be unfair and mis-
interpret who might have said it.

My recollection is it was indicated to us that the
President is dead, the hospital has to perform certain
functions, and the law must be met, no matter who it is,
at this moment.

Hearings Before the President's Commission on the Assassi-
nation of President Kennedy, Volume VII, at 452 (U.S.
Government Printing Office, Washington: 1964)

It is the purpose of this discussion to examine state and common law to

determine which laws had application to the situation described above by the Report and Mr. O'Donnell

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both as to requirements which may not

have been satisfied and as to the question of ownership and control of the corpse itself.

The United States Code makes no specific provision for the handling or control of the body of a deceased President, whether his death resulted from assassination or natural causes. It may safely be assumed that the laws of the fifty states are also silent on this question. However, the common law as well as statutory measures provide guidance for proper determination of ownership and disposition of deceased persons generally.

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Such provisions may be presumed to have application in the case of a chief executive as well as ordinary citizens. After examining common law principles of ownership of dead bodies, Texas cases and statutes in force in 1963 will be addressed to determine which laws may have been transgressed in the course of the hasty shipment of the body to Washington. It should be borne in mind that only state statutes are available for examination in this report that is, local ordinances, health department regulations, and hospital procedures are not discussed.

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COMMON LAW

The early common law of England recognized no property rights
Ecclesiastical courts exercised

in the body of a deceased person.

jurisdiction over the affairs of the decedent. "Although this doctrine has found some support in early American cases, the established rule is that notwithstanding there can be no property right in a dead body in the commercial sense, there is a quasi-property right in dead bodies vesting in the nearest relatives of the deceased and arising out of their duty to bury their dead. This right, which corresponds in extent to the duty out of which it arises, includes the right to possession, and custody of the body for burial, the right to have it remain in its final resting place so the memory of the deceased may receive the respect of the living, or to remove the body to a proper place, and the right to maintain an action to recover damages for any outrage, indignity, or injury to the body of the deceased. "1 22 Am. Jur. Dead Bodies§4 (1965). The primary and paramount right to possession of a body and control over its burial lies with the surviving spouse if there is one

such spouse to have such right

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