6 Utah 167 | Utah | 1889
Tbe petitioner alleges that he is a prisoner in the custody of Frank H. Dyer, United States marshal for the territory of Utah, in the penitentiary of said territory, for a criminal offense against the laws of the United States, to wit, adultery; that such confinement is by virtue of a judgment, warrant, and the proceedings of record, including three indictments against him, his arraignment thereon, and pleas thereto, respectively, and convictions thereon upon his pleas of guilty thereto. A copy of the record is in each case attached to the petition. He alleges that under the judgment in two of the cases he has been imprisoned in the penitentiary for more than sis months,
Erom the foregoing it will be seen that the petitioner was regularly indicted, convicted, and sentenced for the-crime of adultery, upon his plea of guilty made in open court. There is no illegality appearing anywhere in the record of the case. It does not appear in which of the-three cases the plea of guilty was first entered, nor in which case judgment was first rendered. It does not appear that-the Eachael Woodward with whom petitioner committed adultery on the first day of October, 1887, was the same-Eachael Woodward with whom he unlawfully cohabited from the 15th day of January, 1886, to November 23d, 1888. If such was the fact, and it had been properly pleaded and proved on the trial, it would have constituted a good defense to the indictment for adultery; but this-court cannot, on habeas corpus, hear evidence nor deter
Counsel for petitioner insists that the records attached to his petition show that the adultery was committed with one of the same women, to-wit, Eachael Woodward, with whom he had unlawfully cohabited, because of the identity •of the name in the indictments numbered 1,890 and 1,891, and cites Whart. Criin. Ev. § 802, and State v. Kelsoe, 76 Mo. 505. These authorities go no further than to lay down the doctrine that identity of name raises a presumption, more or less strong, according to circumstances, of identity of person. Wharton says: “Identity of name is not by itself, when the name is common, and when it is borne by several persons, in the same circle of society, sufficient to sustain a conclusion of identity of person. The . inference, however, rises in strength, with circumstances indicating the improbability of there being two persons of the same name at the same place, at the same time, and when there was no proof that there is any other person bearing the name. Names, therefore, with other circumstances, are facts'from which identity can be presumed.”
In the case of State v. Kelsoe, supra, the defendant was indicted for burglary under the name of Charles Kelsoe, alias McCarty. At the trial he testified in his own behalf, and for the purposes of affecting his credibility the State introduced the record of the conviction of Charles Kelsoe, alias McCarty, of grand larceny, and this was claimed to be error: but the Court held that identity of such a name was sufficient to raise a presumption of identity of person and was proper evidence therefore to go to the jury. But in this case even the presumption of identity of person from identity of name does not appear from the indictment, nor any part of the record in the adultery case, but only appears in the record of another case, and hence cannot be considered in determining the question now presented. In none of the •caées cited by counsel for petitioner, nor in any we have been able to find, has it been held that on habeas corpus facts not appearing in some part of the record of the case could be considered. It was the duty of petitioner, if he relied for defense upon the fact of a former conviction, to have