*1 STATES. 55 v. UNITED CANNON of Statement Facts. on a for rehearing. time after petition
the first judgment, on which no the record of judgment -Such a part petition rests.” is granted. want to dismiss jurisdiction motion
The of v. UNITED STATES. CANNON -THE TERRITORY OF UTAH. OP TO THE SUPREME COURT ERROR Argued 14, 1885. December November 20, 23, 1885. —Decided woman, of the act cohabiting than created 3 of with more The offence § 47, 1882, 31, 22, polygamy regard Stat. Congress of March ch. of Utah, the same by a man lives in Territory who of is committed women, of his respective one-third at their tables and eats with two house thereabouts, world, language or time, out them or holds conduct, wives, both, necessary not to the commission as his and it is women, them, occupy either should that he and the two the offence room, that he sleep in should have sexual inter- bed or the same the same either of them. course with charged person having unlawfully a male under that section An indictment time, woman, continuously, specified for a with more than one cohabited women, allege person, that he was male nor that naming two did not wives, persons or as The with the women as held out as wives. he cohabited if person male . . . hereafter cohabits with provides statute guilty he shall be deemed of a The than one misdemeanor.” more (cid:127).'Held, not pleaded defendant Utah, 1878, 22, February, Act of Laws the Criminal Procedure Under 1. objections jury was p. taken to the indictment after a n ' mentioned, sworn, allegations it did not contain before were properly overruled. “cohabit,” means, statute, together as hus- in the “to live The word 2. wife,” every use in the indictment element its includes band ; created, allegation above defined and of cohab- of the offence as wives, fact, iting the two an but is women extrinsic allegation cohabiting . covered with them. Carll, 611, distinguished. The case of United v. 10o U. S. States This was a ofwrit error to for review up proceedings bring in the indict- Court of the Utah, Territory Supreme
merit conviction error for plaintiff unlawfully with more than one woman. facts which cohabiting stated in make the case are court. opinion *2 Mr. for in error. Franklin S. Richards plaintiff Mr. in Solicitor-General for defendant error. delivered the of the court. opinion
Mr. Justice Blatchford M. indicted in Dis- Cannon was Angus by grand jury of trict Court the Third Judicial District and for the Terri- of Utah, of 3 a violation tory 1885, February, § act of ch. entitled 22d, 1882, March Congress, approved “ An Act to hundred amend section fifty-two fifty-three Revised reference to States, Statutes of United 1 and for other 22 of Stat. Section bigamy purposes.” act 5352 which Statutes, amends section of the Revised was a 1 of act of ch. 1st, 1862, re-enactment of July § Stat. be under- 501; and, order that amendment may stood, the 5352 are here side new sections placed original from other in each differ by side, which being parts italic: New.
Original. a hus- person homing who has a Every “Every person band or wife who or wife inwho, mar- husband living, living, ries whether another, married a or other over Territory place in a States have or which United single, Territory other over which the exclusive place jurisdiction, hereaf United States have exclusive ter another, marries whether is jurisdiction, married or man guilty biga- any single, be and shall my', punished who by simultaneously, hereafter fine of more than five hun- or on the same marries day, dollars, dred and by more than on.e in a imprison- ment for a term not more than or other over Territory place five section which the United States have years; shall not extend to exclusive any person jurisdiction, reason former mar- by and shall be any polygamy, pun CANNON v. UNITED STATES. whose husband or wife ished a fine of not
riage by more such than absent for five hundred by marriage dollars, five successive and' is not years, for a by term imprisonment known to such to be not more than person five years; nor to but this section living; any shall not person by ex reason of former tend to any reason marriage any person by which has been dissolved former any whose by marriage decree of a husband or wife competent Court; such mar nor to shall reason of have been any absent for person by riage former five any successive is not marriage years, has been void known to such pronounced person decree of a and is believed such competent Court, living, on the dead, to be nor to ground the person nullity any contract.” reason of former marriage person by any which shall hemebeen
dissolved a valid decree of Court, nor to competent *3 reason of former by anj? person which shall have been marriage void a valid de pronounced by cree of a on Court, competent of of the ground nullity contract.” Sections 2 8 inclusive of the act of 1882 are as follows: “ 2. That the shall not affect the foregoing provisions Sec. or of offence committed any prosecution punishment already the section amended the first section of this Act. against by “ 3. That if male in a or other any person, Territory Sec. over which the United States have exclusive place jurisdiction, tha,n hereafter cohabits with more one he shall be woman, on deemed conviction thereof misdemeanor,-and guilty a fine hundred shall be of not more than three by punished or for not six months, or more than dollars, imprisonment by in the the court. both said discretion of by punishments, “ named counts for or all of offences Sec. That any three of be sections one and this Act may joined or indictment. same information oí the
Opinion Court. or That Sec. 5. any prosecution bigamy, polygamy, United unlawful under statute of the cohabitation, States, any drawn or shall be sufficient cause of to any challenge person that he is or has summoned as a talesman, first, or juryman or unlawful been living.in .practice bigamy, polygamy, that he is or cohabitation with more than one been either of the of an offence foregoing punishable hundred and sections, or section fifty-two fifty-three Revised or the Act of States, first, Statutes of the United July ‘An Act to hundred and entitled eighteen punish sixty-two, in the Territories of prevent practice polygamy United States and other annul- places, disapproving certain Acts ling Assembly Legislative Territory ’ that he believes it for a Utah; or, second, man to right have more than one and undivorced wife at the same time, or to live in the with more than practice cohabiting woman; offered as a any person appearing juror talesman, and on either of the challenged foregoing grounds, be on his oath as to the existence of may such questioned any cause of and other evidence be introduced challenge, may raised such bearing upon question challenge; shall be tried the Court. But as to question the first ground mentioned, before challenge shall not person challenged be bound to answer if he shall his oath say that he de- upon clines on the that his answer tend to ground criminate and if he himself; shall answer to said as first ground, answer shall in evidence in given criminal any prosecu- tion him for offence named in against sections one or three of this but if Act; he declines to answer on any ground, shall be rejected incompetent. “ Sec. 6. That the President authorized to hereby grant *4 to such classes of offenders amnesty of bigamy, poly- or unlawful cohabitation, before gamy, of this passage on such Act, conditions and under such limitations as he shall think but no such shall proper; have effect amnesty unless the conditions thereof with. complied shall.be That
“Sec. issue of or mar- bigamous polygamous known as Mormon in cases in riages, which such mar- marriages, STATES. v. UNITED
CANNON ceremonies of solemnized according have been riages the United and such States, of sect, Territory Mormon any of been born before first have day January, issue shall hundred and Anno Domini hereby eighteen eighty-three, legitimated. “ no or co- That polygamist, bigamist, any person Seo. with more than and no woman cohabit- one habiting in this sec- described as aforesaid persons ing any or the United other over which tion, any Territory place to vote at States have exclusive shall be entitled jurisdiction, or election held in such or be other any place, eligi- Territory^ for election to ble or to or to be entitled hold any appointment emolument, or or honor, in, under, office of trust, place public or the United for such under States.” any Territory place, 9 of the act contains vacant Section declaring provisions offices, and election enacting persons registration board of five those offices, shall execute appointed be returned to it which is directed to canvass votes persons, for members of the assembly, proviso, legislative exclude of five shall not any that said board person persons n on account of from the otherwise vote polls any eligible of on the such entertain subject bigamy opinion person on to count such vote ac- nor shall refuse they polygamy, it on the of count subject casting opinion person or polygamy.” bigamy “ The was as follows: The indictment Cannon grand against within and the dis- States of America United jury em- in the aforesaid, trict aioresaid, Territory being duly sworn, do find and on their oaths present, panelled district, M. late afore- Cannon, of said Territory Angus June, in of our Lord wit, on the first said, year day and on thousand divers one' hundred eighty-two, eight June, between said first day other days continously first at the day February, a.d. a.d. did Utah, Lake and Salt county unlawfully territory Amanda Can- woman, wit, cohabit with more than one C. known Clara C. Mason, non one Clara sometimes the form of the of the said United Cannon, statute against
Opinion oí the Court. States in such case made and and provided, the against peace the same.” and dignity
The defendant pleaded case was tried in guilty, April, a verdict and a resulting .guilty, judgment a fine $300, imposing imprisonment penitentiary six months, further till the imprisonment payment fine.
After the was jury and sworn, and empanelled the prose- cution had called a witness, the defendant to the objected giv- evidence under any ing indictment, on the that ground the indictment was defective did not criminal charge any offence, nor offence under statutes of the United States, nor the offence described in the statute, either in the statutory words or words, and, did not equivalent show especially, that the person was a male charged was insufficient person, a warrant verdict or of conviction. support The judgment court overruled the and the defendant objection, excepted. then took as shown following proceedings place, bill of exceptions: Cannon,
Clara C. a witness called for the prosecution, sworn, when the defendant renewed the said objection indictment, with alike the court and a like ruling exception. The witness : full testified as follows name is Clara C. Can- My non. I I know the have been his defendant. wife. I was his wife. I was to him about married ten and have years ago, since Street, lived at 246 South Salt I First Lake live City. there now, and have lived in the same house since after shortly I was lived in married. The defendant has the same house time, house and in the same three part past during child, I a child of have one which is that mar- years. living born I had two other have riage, children January both born before one. In this marriage, I floor, house two rooms on parlor occupy ground on side. kitchen is not at- back, the east dining-room, My tached to I the house. have my part occupied part floor first five in the house. There jl since went to ground is a hall on floor, house running through ground the rooms I on that floor are on the east side of the occupy STATES. v. UNITED
CANNON ol the Court. Opinion ball. has lived in the same She Amanda Gannon. I know three She has oc- years. I live past house during the west side of the on two rooms floor, on ground cupied, *6 to the back of the kitchen, beside her hall, attached I kitchen I use. Amanda not the suppose and is main building, him of her as have heard wife. I speak is defendant’s Cannon in lived the house ever and she has as Mrs. wife, Cannon, nine I think. children, has to live there. She since-1 went all her children have been I think, three years, past During time. little child but not all the home, there at My mean the child of of the house—I me in lives with my part Amanda Cannon live with her The children of this marriage. three and of the house. her During past years, part inihis the defendant has month of year, February prior of me, his meals with in the habit of my been part taking one-third of time. about time, a house, portion his meals me he took with stated intervals; every There were a children: I have son and me and third daugh- day my —with children. He took his meals- and two ter orphan grown up, children and other with me and the child of Amanda He his meals with Cannon third took day. every He took all three of his one-third of the time. and her family me third on week and on meals-with days, Sunday every day, house—that had breakfast at he took his is, my morning'he of each and also his week, me two breakfast meals with days which made one-third the time. Sun- On morning, Sunday Sarah’s, dinner at and his at took his Amanda’s. supper day on the floor of the house used as are four rooms second There with two of the rooms on bed-rooms, hall, and a either side into the hall. three rooms it. The During past open corner, the bed-room the northeast I have occupied years the one the southwest corner and Amanda has occupied the house. The defendant bed-room occupied bedroom, room me a corner. The southeast occupied on the bed-room, the defendant as a are the one occupied is no room. The hall, side of the and there same intervening house I of is in Salt Utah Lake Territory. speak County, old, Cross-examined: oldest years twenty-three My daughter OCTOBER TERM, 1885. I have little son twenty. my Clara girl, twelve Hardy, little ten old, old, w'ho years years girl orphans. Their mine, and, mother was niece when she she died, left me. little These, them to Alice, three my daughter years old are the members past, family. my My Alice daughter was three old last The years January. children two'orphan have lived with me for the last five Thé two years. little girls oldest and the my daughter have occu- youngest daughter We two beds, room with me. have and have pied my all slept in that room.
Q. state of whether that State and that things relation children continued until your orphans February last ? on the isit im-
Objected prosecution ground irrelevant, and material, incompetent. objection that the attorney argued, prosecuting announcing objection was on the relevancy, materiality, competency *7 it evidence and not on the offered, was not a ground proper or that the offer cross-examination was out of subject order, but that to non-access show was any proof tending immaterial; and defendant’s and counsel admitted stated to the court that the as to evidence was offered show, with other tending evidence to be non-access the time given, during charged the and as to indictment, tending disprove any presumption sexual which intercourse be raised of the might by testimony witness. The court sustained the that the objection, stating the been had deemed both presented by question objection as raised the being parties properly objected interrogatory to and the ; defendant excepted.
Q. Was Amanda Cannon married to to defendant the prior time was married to him ? you for
Counsel the to as ir- the prosecution objected question relevant, and The court sustained immaterial. incompetent, the to and defendant The objection, excepted ruling. were to witness, following questions severally propounded counsel that the sole stating purpose questions were asked was to establish sexual non-intercourse.
Q. Did act of hear and of the know you passage STATES.
CANNON UNITED v. Act,” the Edmunds about time called usually Congress was ? passed time, the habit of defendant
Q. had been that What prior and bed, room and room your occupation ? Cannon Amanda bed of of that did time of the law
Q. he passage say About other members and the family respect you anything that and what did he ? law, to not violate intention say to his ? Q. to what he Did assent you proposed oc- occur his habit as to Q. that did After any change what, if bed, room was any, change? your cupying at time Q. has the defendant 22, 1882, After March any he had sexual inter- room or bed, your .has occupied ? course you
To each of attorney these prosecuting objected, questions irrelevant, im- the evidence was on the sought ground based were material, solely objections incompetent, on these form questions, grounds, The court sustained time or manner of the evidence. offering each the defendant and to the on excepted. each objection, ruling for the a witness sworn Cannon, M. prosecution, George M. he is Cannon; : father’s name is testified Angus My I name is Sarah M. Cannon. defendant here. mother’s My to Amanda heard father state he was married Cannon. have my he married to Q. father Have heard state you your ? Sarah Cannon im- on It is
Defendant objected ground question indictment, is not named in the that Sarah Cannon ; material with her any marriage charged. intended to show attorney explained prosecuting *8 to Cannon were married defendant that Sarah and Amanda offered the evidence to the and that he same ceremony, to call as a witness. show whom he had the right the evidence and allowed The court overruled the objection to for this and the defendant ruling. excepted purpose, married father I have heard Witness. say my same time. at mother and Amanda Cannon my : for the testified Cannon, Jr., M. sworn prosecution, Angus TEEM, OCTOBEE Opinion of Court. the. father’s name is M. Cannon and mother’s
My my name Angus is Amanda I Cannon. have lived last three during years in the same house with father and mother. My mother my nine has children of them at home and ; eight have I took meals there and there on during period. my slept mother’s side of the my taken meals at the house.. my Have has, same table with the rest of the father taken family. My his meals about one-third at of the time one-third Clara’s, the time at and one-third Sarah’s, time with mother. my About third he takes his meals with day mother and every my her children. There are four sleeping apartments second two on each side story house; hall-way north and rooms south, on each side goes open into hall. mentioned Clara period C."Cannon During has the northeast occupied bed-room, father has my occupied southeast, and mother the southwest bed-room. Cross- my examined Clara : Cannon has the northeast bed-room occupied or six five my knowledge years.
Q. Who with her % occupied etc. Objected immaterial, sustained and Objection de- .to fendant exceptedi father the same house
My occupied with Clara and Amanda Cannon. I have been at home continuously three or four I have been past years. be- away probably tween five and six months, and, with this I have been exception, . there more than three years.
Q. Do know where father that time you passed your during his nights. to. and defendant
Objected sustained, Objection excepted ruling. The here rested. prosecution M. Cannon recalled for further cross-examination:
George súbstance of what father said about my Sarah Amanda Cannon that he them at was, married Pie said he same time. married them act against prior and when he stated considered it He perhaps polygamy, legal. but I don’t at I recollect it. am year, present twenty- my fourth year.
CANNON v. UNITED STATES. of the Court.
Opinion the defendant recalled and by C. Cannon testified: I Clara of what is called Church a Saints, am Latter-day member for twenty-four been a member The defend- years. I have and I don’t member of that church. know how is also ant long it is I since first ever him. member, has been knew the same is a member of and Cannon has church, Mrs. Amanda thirteen is, first her—that years. I knew been since to Q. Cannon married Amanda Was defendant Mrs. him ? to to your marriage prior for and im- counsel irrelevant prosecution
Objected by and defendant sustained, material. Objection excepted ruling.” then made the offer counsel following proofs: Defendant’s and this other witnesses to be called, We offer prove married defendant before the
that Amanda Cannon was 'to the that, witness; prior passage he had law, alternately occupied sleeping-room Edmunds and still and bed of with her each; each, family, occupied, apartments, including separate dining-rooms occupies, separate kitchens; and after the law had both that, Edmunds passed President, Houses of and before its Congress,' approval Amanda, fami- and their witness, the defendant announced to did not but should live lies, that he intend to violate that law, it so at the same law, within as it should remain a and long his reasons for so and dur- thereafter, time and assigned doing, times he did not indictment, alleged ing occupy of, or bed have sexual intercourse the wit- with, rooms and to this from ness, extent, mutual separated agreement, that, all the in the indict- ; the witness time mentioned during two in their families have their meals ment, taken respec- with the that defendant has taken his meals tive dining-rooms; her in her three two or days witness family, dining-room, week, each for the the witness provided support distinct allowed from other her . family family expenses, them to same house occupied occupy separate apartments him and this the extent his relations Amanda, un- and, that the witness; also, financially defendant house her able witness family; provide separate VOL. cxvi —5 and Amanda
also, witness and her and-family that the family on the defendant for their To this offer dependent support. *10 and thereof the each and the paragraph prosecution objected, was sustained and court, objection defendant ex- to the cepted ruling.” all the evidence in the case. The foregoing given “ as follows: The
court instructed indictment jury on the case that the first defendant, of in the charges day June, and on divers of other 1882, our Lord year days, continuously, 1882, June, between said first first day of Feb- day cohabit did with more than one unlawfully ruary, woman, one and one Clara wit, Amanda Cannon C. Mason, some- Cannon. times known as Clara O. believe from you [If of the a reasonable evid^ce, gentlemen jury,'beyond doubt, that the defendant lived the same house with Amanda. Can- non and C. the women Cannon, Clara named the indictment, and ate at their tables one-third of his or respective time there- held out abouts, and that he them to the world his language him as his conduct, both, wives, should find you is not that the evidence necessary should guilty.] show [It women, that and these either the defendant occu- them, in the same bed or room; same neither pied slept is it should show that the evidence that, within the time necessary mentioned, he had sexual intercourse with either of I them.] will the Taw the defendant innocent state, until presumes a reasonable doubt; proven guilty beyond you the witnesses, the judges credibility evi- weight dence and if find facts, the defendant you you guilty will verdict, find ‘¥e, say your defendant' jury, in manner and form as guilty charged indictment;’ if find him not and, will you you guilty, say, ‘"We, jury, ” find the defendant not No further or other guilty.’ instruc- tions were to the given jury.
The defendant of the instructions excepted parts .are enclosed in brackets. He also submitted the following for instructions, each of which was prayers separately refused, followed a by separate exception: “ defined 1. The offence in charged third section UNITED STATES.
CANNON.v.
Opinion Court. ‘ An entitled Act to amend section of the act Congress in reference other Statutes bigamy, the Eevised known as March 22d, commonly purposes,’ approved ‘Edmunds Act.’ “ Utah 2. That section Territory, pro- applicable here, March 22d, 1882, if male since vides that, person more than he shall deemed cohabited with of a misdemeanor. “ to male who have at 3. This does section apply persons to con- cohabited lawful but wives, successive periods with two women. cohabitation temporaneous “ of one includes members 4. Cohabitation living together intercourse, social eating lodg- family, consorting the same there bed, need not They occupy together. ing be an must intimacy. equivalent ‘ in this is to be section, 5. The understood cohabit,’ word *11 It not in does to all a technical or restricted sense. apply persons under one roof of w ho live with each other as members to adults of different sexes who live one but family, only that husbands and wives do, manner including gether or for recurrent of continuously the intimacy periods occupying bed. the same “ ' if The word in cohabit,’ 6. the last refused.) (Eequested to be in a technical-or this understood sense. section, special not sexes who live with It does all of opposite apply persons under roof as members of one each other family, that of different the manner to adults sexes together in living it must a contin understood, do. So include husbands wives in man or recurrent of the same uous occupying apartments, in ner usual with sex who live sexual intimacy. persons opposite No is within this not include case -section which does “7. of a man two in mode of such association women their it as to make an necessarily immorality,' by example more an habitual with each two intimacy indicating mutual women consent. this The made misdemeanor cohabitation which is man with two section is an habitual residence or a dwelling in more women intimate relations. sexual 1885.- Opinion ol the Court.
“ . this offence are, first, ingredients the person be a male second, that he has charged person; lived dr dwelt women, with two either at the same time or continuously ’ time; each alternate periods third, that he has so lived women, with each of two or more in such personal intimacy to indicate that has had sexual intercourse with re- them, their at his and spectively, pleasure.
“10. The Court'will this Edmunds Act its interpret and in view the actual situation' in terms, Territory, the Court is and thus deduce judicially cognizant, intended to a corrective to Congress apply polygamy anomalous status its produced' by long practice. “ 11. The act is intended to future prevent any polygamous and to the -continued cohabitation of marriages, prevent per- sons who are The section already co- polygamy. making (cid:127) habitation a misdemeanor has special primary application to a cohabitation with a of wives. This obvious in- plurality tention indicates the of the criminal cohabitation; ingredients that it is a in the sexual usual living together between intimacy united in the marital persons immoral in relation, example the sanction of lawful having marriage, pernicious an producing illegitimate offspring. Act
“This all children born legitimizes prior January 1883 it ; authorizes to all offenders to its enact- amnesty prior ment, and thus it is shown that the Act was view of passed existence of in this and the mul- long polygamy Territory, titudes of children born therein; is merciful to those who have broken the laws humane against polygamy, paternal children born polygamy. “ 13. This Act does not command *12 fathers to polygamous abandon their children nor to break off all communication with their mothers. Such at and under fathers are liberty, support the moral to He both. strongest obligation, may hold and familiar sexual, other than any relations, friendly incident to the of such All naturally, duties. proper discharge his social with the mothers of such estab- familiarity families, lished to Act, of said not shown to include prior passage all the it, cohabitation the Court has defined particulars
CANNON v: UNITED STATES. of the Court.
Opinion with the should be considered jury legal presumption and the to innocence, failure establish such cohabitation enti- ' tles the defendant to acquittal. “ 14. The existence at the time of the of the Ed- passage Act of a between the munds relation defendant polygamous women mentioned in the an indictment, though illegal the statute evidence be, and cannot made relation, not, conviction fact for violat- to, to, necessary tending third intended such section. ing Any enactment would be ex and void. purpose post facto that all and, therefore, “15. The innocence, law presumes Edmunds law took who were when persons cohabiting then to of that ceased act, to effect, contrary provisions do so. “ defendant 16. No in the conduct of the fact subsequent more Act be made Edmunds can significant passage cohabitation, reason the section guilt against violating between him the existence of relation polygamous indictment, women mentioned prior passage of that statute. “ his marital and defendant is entitled to show pa- of the Edmunds Act, rental status at the time of passage toward the women men- conduct explain subsequent an innocent and lauda- tioned show indictment, ble motive therefor. that he had 18. For he families show purpose, at and children women said prior respectively, pas- Act; and their had of said women children such sage him for been on their and were still support; dependent that he has them; has continued since to visited support father said children; them for that as the and. purpose, with such intercourse women since that he not had sexual can no inference of cohabitation Act; of said passage fur- relations, from the fact of fact of such drawn from the children without mothers and for such nishing support them, meals them, fact of from the visiting taking nor of rooms in in a suite them, nor from his living separate them, as that himself, same occupied by house, belonging *13 . if as a occupied lived they separate habitually apartments and distinct nor can such household; inference separate all drawn from such facts. do con- not, They themselves, stituté cohabitation. “ 19. There is no evidence this case to show that tending this defendant Clara C. Cannon as or held wife, recognized her out to the world as since of the Edmunds such, passage Bill, and within the dates named in the and with- indictment, out such should proof the defendant. jury acquit “ 20. If the find that the not defendant has held out to jury world, announced and as his the Clara wife, recognized, C. Cannon named in indictment, since the passage Edmunds bill, within the dates named in the indictment, then should the defendant. they acquit “ 21. Sexual intercourse is a element of the crime necessary of cohabitation; and, if the find the defendant has jury had sexual intercourse with both Clara C. Amanda Can- non since the of the Edmunds bill, within the passage dates named in the then indictment, should they acquit defendant. “ 22. In order to find the defendant the offence it must that the defendant had charged, appear gone through forms with both of the women named indictment, Amanda and that, Clara C. Cannon; not ap- in this castethat he was ever married to Clara pearing O. Can- non, the should jury acquit. “ 23. If the find that there never was the form of mar- jury between Clara C.
riage defendant, Cannon should they . acquit. “ 24. There can- be no conviction under the indictment in case, the reason no that there is that the de- charge
fendant was ever married either Amanda or Clara C. Can- nor non, that he held out either or both any charge as his wives.”
From'the defendant judgment appealed Supreme Court which affirmed and he has it, Territory, brought the case to this court a' writ of error. at the bar principal question argued proper n
CANNON v. UNITED STATES. of the Court. Opinion the act of That construction question depends § ” *14 word cohabit the of the section. on meaning the defendant is indicated his contended for meaning and non-access, Cannon facts to rebut Clara C. offer show by her, intercourse and of sexual with the actual the presumption and the for instruc- intercourse; of such requests absence to the are based on the view that tions the word jury, ” idea of cohabii includes the sexual inter- having necessarily But course. we are of that is not the in- opinion proper statute; that the court terpretation properly charged n fount, that the defendant was to be if he lived jury milty in the same house the two and ate at their women, with re- tables one-third of his time or and held thereabouts, spective' out to them his or or world, conduct, both, language wives; and that it should be it was shown necessary he and that women, two or either of them, occupied bed or same or he had in- the same sexual room, slept tercourse with either of them.
This deducible from the interpretation language refers relations statute It between throughout. wholly actual and women on the existence of men founded marriages, their Section 1 or on out of existence. makes it holding an offence with wife or for a man or hus- woman, living band, and calls such offence Sec- another, marry polygamy. 3 man, tion out and makes it a misdemeanor for singles than him to cohabit with more one woman. Section 4 pro- or all of vides that counts for the offences named in 1 any §§ be same information indictment. may joined This has no to show that cohabitation certainly tendency referred to is one outside a marital relation, actual or osten- inSo, sible. and unlawful cohabita- bigamy, polygamy, § that, tion are classed and it is together, provided, any prose- cution for one of such it shall sufficient offences, cause to a that he has been challenge juror, living practice unlawful cohabitation with more than' bigamy, polygamy, an offence beén punishable by it to be for a sections, believes man preceding right or that he ^o have more than one and undivorced wife at the same
Opinion oí the Court.
or to live in the
time,
practice
with more than
cohabiting
one woman.
It is of unlawful
practice
cohabitation with
more
than one woman
is aimed at—a cohabitation classed
its outward
having
semblance.
It
polygamy
is not,
on the one hand,
unmarital
meretricious
intercourse with more
than one woman. General
as to lewd
legislation
is left
practices
to the Territorial
Nor,-on the other
government.
hand, does
the statute
into the intimacies of the
relation. But
pry
it seeks not
when direct
punish bigamy
polygamy
those
can be made,
existence of
relations
but to
proof
pre-
vent a man from
the face
the world the ostenta-
flaunting
tion and
of a
household,
all the
opportunities
bigamous
outward
of the continuance of the same rela-
appearances
tions which existed
before
act
without
passed;
reference to what
occur in the
of those relations.
privacy
for sexual non-intercourse,
made and as
Compacts
easily
easily
*15
when the
broken,
relations continue to
prior
exist,
marriage
with
the
the
of
same house and table and the
occupation
keep-
the
of
same
not a
is
lawful
ing up
family
substitute for
unity,
the
which alone the statute
monogamous family
tolerates.
In
like manner,
and unlawful cohabitation
bigamy, polygamy,
in
6 and 8 of the
classed
act.
Section
together
au-
§§
to
thorizes
President
to
grant amnesty
of
persons guilty
or unlawful cohabitation before the
bigamy, polygamy,
passage
of the act.
unlawful cohabitation, under the laws of
Any
United States,
time,
before that
could
have been
only
ostensibly
marital
for the
on
cohabitation,
statute
subject
of the
to
Statutes,
Revised
Section
regard
bigamy.
§-5352
8 excludes from
or
every
bigamist,
person
voting
polygamist,
with
than one
and
more
woman
cohabiting
every
with
or
cohabiting
person
any polygamist, bigamist,
cohabiting
with more than one woman. This
was considered
section
v.
presents that relation a of wives, tains from plurality although, of the act of date March until the passage he offers he vote, fact have register day may. with more than one cohabited woman. Without regard at the time whether, entered into such relation, question he it awas offence, or whether, prohibited punishable of its reason of time since a commission, for lapse prosecution it not be if he still barred, maintains he is a may relation, because is the which status bigamist polygamist, fixed habit and of his has established. He has practice wives, of than he more whom woman plurality recog- as a nizes children he is wife, whose the acknowledged father, and whom with their he as a children maintains family, he is the head. And this status as to wives several well continue to as a exist, for may relation, practical although he not in fact cohabit more than one; for period may n that is consistent with the constant quite recognition relation same awith intention many, accompanied possible to renew cohabitation one or more the others when ' It convenient. not, therefore, because person committed the at offence some bigamy polygamy, in violation time, statute, of some as an previous .existing additional its he is commission, that disfran- punishment chised act nor 22,1882; March because Congress offence, punished by defined because, act; terms of that at some time entered having into a relation, awith bigamous polygamous *16 wife, 'second or while first he still main- third living, and it, tains has not dissolved for the time it, although being actual restricts cohabitation to' but one. in He fact might he from abstain actual and all, cohabitation with be as -much still n ever or He can cease to be biganusc polygamist, such when he has dissolved effective and some finally fully manner, we called on here which- not point-out, very relation of which constitutes the wives, husband' to -several forbidden assumed. is previously status'h£ Cohabitation n butone of many incidents relation. It is
Opinion, of the Court. not to it. One where such a has been man, essential system establishments, have several each tolerated and may practised, none of which be the home of a family, may separate in or even visit. The statute makes an he himself dwell may on and distinction between bigamists polygamists express cohabit with more than one woman those who and hand, if cohabitation with several wives whereas, on the other; those who are or was essential to description bigamists in the statute would be words those superfluous polygamists, therefore, It follows, and any person having unnecessary. in the or sense is a several wives bigamist polygamist of its since the date act of March 22, although passage than one of them.” with more he not have cohabited p. may with a man cohabits In the of this interpretation, spirit 8 of the act, in the sense of 6 and more than one §§ women as his wives, out to the world two when, by holding he in the house with both, or or lives conduct, his language of his time, at the table of each a and' eats them, portion or in the same the same bed occupy sleep although have sexual intercourse them, room either of with actually He holds two women out to the world with either of them. conduct, when, and wives, as his being recognized understood to the two husband of so each, reputed them, of one of the son of a the son wives, wives and the wife, he maintains the two third reputed house each, himself, children all the same of. head of the table of and acts as the each, eats at regularly two families. “ cohabit with more than one This phrase meaning is in consonance ai statute, woman,” recognized word “cohabit.” Webster “cohabit” definition In “ to inhabit or reside com thus : 1. To ’dwell with ; defined 2. To or live to same dwell country. place pany, defined thus : In Worcester it is as husband wife.” gether live to in the same 2. To another 1. To dwell with place. in its never used word is and wife.” as husband .The gether second meaning in a criminal statute its ; first meaning, The context statute has relation.- «that to which its use *17 STATES. CANNON r. UNITED 75 Opinion of 'the Court. and- the manifest evils found,
in it is which rise to gave which “ in cohabitation,” enactments that- the regard to require special which should we have have the word méaning assigned fail of for want of it. and polygamy might proof, Bigamy but with more direct evidence of cohabitation any marriage, in in was case, than one the sense this proved suscepti the,, ble of here was offence as was such proof' given; here that 3 of act was reach— section intended proved the exhibition of all the household, indicia of a marriage, However, cases, twice some divorce family, repeated. in reference to a the condonation of adultery, question “ ” word cohabit have used in been the limited sense may sexual have been so intercourse, or however its meaning limited its context statutes, other it has no such meaning in the statute before us. views
These 3 construction of section show proper the evidence which the court was ex- rejected properly cluded, and that there was no instructions error given asked, those from those aside jury, refusing give which were been covered by have were proper given, (cid:127) (cid:127) the instructions Nor is the to the- given. charge given open in it first which follow the objection paragraphs not confined to the .time laid in the indictment. is to the indictment it does al- taken because
Objection that the defendant was a male the of- person, lege making § when committed fence it a male specifies punishable Act of Criminal Procedure By Territory person. Utah, 22d, 1878, which force February from passed and after March Laws of 10, 1878, 91, it is p.' provided as follows: “ 148. All the forms of Seo. in criminal actions, pleading rules sufficiency is to be de- pleadings termined, are those Act. prescribed by first on the 149. The part pleading people “Sec. indictment. must 150. The indictment contain: Sec. action, 1. The title of the name the court to specifying , which the indictment names presented, parties; A statement of the acts or clear and concise omissions *18 such offence, time, constituting particulars will the defendant enable as person, place, property n understand the character the offence distinctly complained in the of and answer the indictment. It must be ¡substantially form: following of Utah.
Territory District The In the--Judicial Court. People A. B. of Utah against Territory this Court, is accused the Grand A. B. Jury its such of the crime of indictment, (giving legal appellation, it as or the arson, like, as murder, felony designating as said A. on the B., committed follows: The misdemeanor), — A. D. of-, county day eighteen-, at. as an of- set forth the act or omission charged -(here fence). “ it 151. It must be direct and certain regards: Seo. The
1. ; party charged The offence
2. charged; The 3. .of the offence. circumstances particular 156. The used construed “Seo. words in’an indictment are usual their common such except acceptance language, defined words as are construed law, phrases to their according legal meaning. “ offence, Words used in a a Sec. 157. statute define public not be indictment; need other strictly pursued the same be used. words conveying meaning may “ Sec. 158.-The indictment is if it can be sufficient under- therefrom: stood
1. That it is entitled a court receive authority having the name of the court (cid:127)it, be not stated: though That it was found a of the district in which by grand jury court was held; 3. That the defendant is if be named, or, his name cannot that he is described a discovered, fictitious name, his true name is to the unknown; statement jury that 4. That offence committed was within jurisdiction and is triable court, therein; CANNON v. UNITED STATES. offencewas committed at
5. That the some timé prior the indictment; time finding act or
6. That-the omission as the offence charged clearly forth, set without and in such man- distinctly repetition, ner as to enable the court to understand what is intended;
To pronounce conviction, judgment upon according of the case.” right Seo. on the of the defendant only pleading part is either a demurrer or a plea.”
Section 192 that the defendant demur to the provides indictment when it the face thereof does appears upon conform to the 150; substantially requirements § the facts stated not constitute a offence. do public
Section 200 that when the mentioned provides objections the face of the can indictment, appear upon they §192 *19 taken that the the facts demurrer, that by except objection stated do constitute a offence be taken at the nqt public trial, under the of not' after the in arrest or, plea trial, guilty, of judgment. a 479. Neither from the form or mode
“ Sec. departure pre- scribed this act in to respect any pleading proceeding, nor an error or mistake it invalid, renders it unless has therein, defendant, tended to his in actually prejudiced prejudice, to a substantial respect right.” under these the defendant,
Certainly, provisions, having to the indictment and hot must held demurred, be to pleaded have understood that the was a male distinctly charge against as of the offence the offence be- of, person, complained one which a male could omis- ing commit; person sion from the indictment of the a that he was male allegation could not him, have or.tended to his person prejudiced preju- dice, a substantial respect right.
The same to the that the statutory provisions apply objection indictment contains of unlawful a cohabitation merely charge with more than and does cohabitation allege with the women as as or as held out wives. The wives, persons defendant, held, and not demurred, must having pleaded under that the §150, statement of the acts constituting tfie
78 of the Court.
Opinion offence was such as to enable him to understand distinctly character of the offence of, as offence is now complained and to answer the indictment. The now interpreted, objection made cannot be as an the facts stated regarded objection do not constitute a because the statement is offence, public the Avords of the but one statute, noAV have held, they, and there could been not have meaning; any prejudice defendant, to a substantial tendency respect prejudice, in not more that he cohabited right, pointedly alleging Avith the women as Avives.
In connection 3 with these of the act of rules, statutory § makes the offence misdemeanor. In United Congress States 142; v. Pet. it was Mills, 138, said this court: gen that, eral rulé indictments for misdemeanors created is, it is sufficient statute, the offence in the Avordsof the charge . . . But in statute. all cases the offence must be set forth Avith and all clearness, the ac certainty necessary apprise cused of the crime Avhichhe stands These charged.” prin to a case of misdemeanor, Avere applied ciples United States U. S. and an held v. indictment was sufficient Britton, statute, because it embodied that lan language crime, element of the and thus covered the offence eArery guage Avasset forth with sufficient created statute certainty, the defendant clear notice of the so as to he was give charge on to defend. That case was the court called distinguished by v. 105 U. S. as this distin from United States Carll, made it an In Carll’s the statute offence case, guishable. Avith States intent to United forged obligation pass a fine and at defraud, imprisonment punishment *20 in on a motion arrest of arose, hard labor. The judg question sufficient, Avas it forth Avhetherthe indictment ment, setting in of the without further statute, offence the the language kneAVthe instrument to be that the defendant forged. alleging aimed held that at the statute was This court offence Avhich a to the common-law offence of Avassimilar forged uttering tha,t was the instrument that, therefore, bill; forged knoAvledge that the crime; essential to make out the uttering, was counterfeit, in fact intent of an instrument with to defraud, a. CANNON UNITED STATES. Field, Miller,
Dissenting.Opinion: JJ. tbe within defendant to be but genuine, though supposed statute, would not be within its the words meaning omitted, The in that case—a knowledge object. allegation a not fact, extrinsic forgery forming part separate, —was to of the intent or of the fact defraud, uttering, and, held absence was forgery; allegation, that no crime was In was of other the case words, charged: the class under the facts statute, Utah where the provided not stated do constitute offence. as has been This, public shown, not that stat- case. word “cohabit” has, definite element of the offence ute, meaning, including every before with as defined. The created, cohabiting allegation but is covered fact, women wives is not an extrinsic two. with them. allegation cohabiting A not court, to this made, strong appeal argument, to would court, of the trial because that uphold rulings with husband not cease require polygamous wives, themselves; also abandon the women plural court was to indicate what the this asked conduct husband toward them must be in order to conform of the law. It is sufficient to while that, requirements say, what Avasdone in this case, defendant after the passage of the act of was not no court can lawful, say, Congress, Avhat state of advance, will be further lawful, particular things than that he must cohabit this, not more than one woman, in the sense of the Avord defined. cohabit,” as hereinbefore While has mar- issue Congress legitimated polygamous born before such and thus January riages, given issue claims their father which laAvAvill upon recognize enforce, it made enactment no respect right status of a It the con- wife. leaves bigamous polygamous duct of the man her toAvard to be considerations regulated by outside of Avhich, 3, are covered statute, § must be dealt with Avhen judicially, presented. properly
Judgment affirmed. J., whom Field. —I dis- concurred Mr. Justice Miller, sent from the of the court in case. judgment *21 OCTOBER TERM,
Syllabus. that the act of when I think Congress, cohabita- prohibiting tion more than one meant unlawful habitual sexual intercourse.
It a strained is, construction of a my opinion, highly penal statute to hold that a man can be under that statute, guilty, without actual sexual connection. accompaniment I of no instance in which the know word cohabitation has been used to describe a criminal offence it did not where imply sexual intercourse.' Justice Field me. concurs with
Mr.
ROBERTS v. REILLY. THE CIRCUIT COURT OP THE APPEAL FROM UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA. Argued December 20, 1883. November 14, 1885. —Decided corpus Court, the final habeas from decision of Appeals- in cases of a District thereof, may, the discretion judge judge, or of a within of the court or tribunal, at a term of the appellate Circuit Court sent to the current at the taken, regulations adapted appeal is under justice. time when secure judge final decision of a District Court or of appeal from the An thereof in a chambers, case be heard the Circuit Justice at corpus habeas when it objection, appears the order therefor is made without and for the con- parties, parties appearand venience of are heard objec- and no hearing, hardship injustice at the that no tion is taken An follows. objection thereto under these late if circumstances is too taken for the first time in this court. application (detained alleged fugitive of an justice On from under author- ity the executive of the State where he is found in order to be surrendered .of alleged executive of the State which the crime is to have been com- mitted), discharged law, corpus, question to be on a writ habeas it is a substantially charged against he is with the commission of a whether crime of,the ; question fugitive latter State but the he is a laws whether from fact, governor is one of decision of which tile justice the State in justify found is sufficient to he is removal—at least until over- contrary proof. thrown corporation capable in law of ownership of question property, whether larceny charged, question is not subject of a which can be raised in discharge corpus alleged habeas for the of an fugitive proceedings from surrender to the executive held for State which justice the crime to have been committed. alleged