6 Utah 264 | Utah | 1889
Tbe case, as stated in tbe petition, is that tbe petitioner was on tbe thirteenth day of April, 1888, twice indicted by tbe grand jury of tbe third district court; that both indictments were found and presented at tbe same time; that tbe names indorsed on each, as witnesses, were tbe same; that one charged him with the crime of adultery, alleged to have been committed with one Mary Busley; that tbe other charged him with tbe crime of unlawful cohabitation, alleged to have been committed by living with Mary Barton and Mary Busley as bis wives; that tbe indictment for adultery alleged tbe crime to have been committed within tbe period of time covered by . tbe indictment for unlawful cohabitation; that on tbe sixth day of February, 1889, tbe petitioner was arraigned before tbe court on tbe charge of unlawful cohabitation, and pleaded guilty; that thereupon tbe court suspended sentence upon that charge; that immediately thereafter be was arraigned upon tbe charge of adultery, and pleaded guilty, and thereupon be was sentenced by tbe court to imprisonment in tbe penitentiary. Thereupon tbe petition avers that the
It will readily be seen from the foregoing statement that the petitioner was regularly indicted, convicted, and sentenced for the crime of adultery, and that there is no illegality appearing upon the record thereof; but that the petitioner is seeking to impeach or destroy this record by alleging and showing the existence of another, made in another case, and which is entirely separate and distinct, and which, if the facts set out in his petition are true, might have constituted a good defense to the charge of adultery if interposed by plea of former conviction in the trial court; and the question presented to us is whether the defense of a former conviction, upon a prior prosecution, can be made available for 'the first time on an application for a writ of habeas corpios in this court, after conviction on plea of guilty, without pleading it, or in any way calling it to the attention of the trial court. The Code of Criminal Procedure of this territory provides as follows: “Sec. 201. There are four kinds of pleas to an indictment: A plea of (1) guilty; (2) not guilty; (3) a former judgment of conviction or acquittal of the offense charged, which may be pleaded either with or without the plea of not guilty; (4) once in jeodardy.” Section 202 prescribes the form of each of these pleas. “Sec. 205. All matters of fact tending to establish a defense, other than that specified in the third subdivision of section 201,
It is also claimed that the judgment was void, because it was passed in less than six hours after the plea of guilty was entered, and was therefore in violation of the statute. The copy of the record attached to the petition shows that the petitioner was arraigned, and pleaded guilty, and “ requests that sentence be now passed upon him ” on the same day sentence was imposed. The plea and sentence